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2003 DIGILAW 1041 (AP)

Dora Prasad M. v. Corporation Bank, Mangalore

2003-08-14

BILAL NAZKI, G.YETHIRAJULU

body2003
( 1 ) THIS appeal is preferred by the writ petitioner in W. P. Nos. 5621 of 1989. He filed the writ petition praying to set aside the order of his dismissal from the service passed by the first respondent-Bank by issuing a writ of ceritiorari calling for the records relating to the orders and to hold that the orders of the respondents are illegal, mala fide, unfair and unjust. ( 2 ) A learned single Judge of this Court dismissed the above writ petition on 16/03/1995 holding that the petitioner is not entitled for the relief as prayed for. The petitioner being aggrieved by the order of the learned single judge preferred this appeal challenging the validity and legality of the order. ( 3 ) FOR the purpose of convenience we wish to refer the appellant as petitioner. The brief facts leading to the filing of the appeal are as follows: , ( 4 ) THE petitioner worked as a clerk in the first respondent-Bank. On 12/10/1984 he was suspended and a domestic enquiry was ordered against him for substituting genuine gold ornaments pledged in bank with spurious ones. The matter was entrusted to Central bureau of Investigation (CBI) and a crime was registered against him in August, 1985. A charge-sheet was served on him on 22/09/1986 to the effect that he while discharging duties of joint custodian of the Clerk of gandepally Branch of the Corporation Bank raised a gold loan A/c No. 214 of 198 3/05/1983 in the name of his wife Smt. M. Anitha and obtained a loan of Rs. 3,600. 00 on pledge of spurious gold ornaments viz. , four gold bangles and one baby chain purported to be gold, and thereby committed misconduct by failing to maintain absolute integrity and acted in a manner unbecoming of a bank employee. ( 5 ) DURING the inspection in September, 1984 the ornaments were got tested and the jewel appraiser Sri V. Brahmanandam found that two out of four gold bangles were of spurious gold, that the petitioner managed to obtain a report from jewel appraiser without getting all the ornaments appraised by taking advantage of the good faith the appraiser had on him. The loan account was closed by the petitioner s brother Sri M Veerabhadra Rao chowdary, brother of the petitioner, on 4/09/1984 by repaying the loan amount with interest. The loan account was closed by the petitioner s brother Sri M Veerabhadra Rao chowdary, brother of the petitioner, on 4/09/1984 by repaying the loan amount with interest. On October 14, 1986 the petitioner gave a reply to the charge-sheet contending that he did not take the loan for himself, that he had no access to the Jewellery when it was in the custody of the bank, that he had no authority to grant the loan and he was not responsible for getting the Jewellery appraised, therefore, he did not commit any act prejudicial to the interest of the bank. The petitioner contended that the procedure adopted by the Enquiry Officer is irregular and the findings are contrary to the evidence available on record, therefore, the orders of dismissal based on the findings of the enquiry report are liable to be set aside. ( 6 ) THE respondents filed a counter-affidavit with the following contentions: ( 7 ) THE petitioner while working at gandepally and Eluru Branches committed criminal misconduct and breach of trust by removing genuine gold ornaments pledged under the loans of his relatives, friends and other borrowers and replaced with spurious gold jewels. Sufficient opportunity was given to the petitioner for effective participation in the enquiry and no irregularities were committed in the enquiry proceedings. The petitioner confessed before the officials and assured to get the account closed. Accordingly the loan account was closed on 4/09/1984/ Septe 5/09/1984 after repaying the amount by the petitioner s brother Sri M V. R. Chowdhary. There is sufficient material to show that the petitioner is liable for dismissal from service, therefore, requested to dismiss the petition as devoid of merits. ( 8 ) A learned single Judge of this Court after considering the material available on record dismissed the writ petition. Hence this appeal by the appellant. ( 9 ) THE point for consideration is whether the Order of the learned single Judge dated 16/03/1995 is liable to be interfered with? point: ( 10 ) IT is an undisputed fact that a gold loan of Rs. 3,600. 00 was taken in the name of petitioner s wife under loan account No. 214/83 dated 9/05/1983. The said loan account was closed on 4/09/1984 by repaying the same with interest. point: ( 10 ) IT is an undisputed fact that a gold loan of Rs. 3,600. 00 was taken in the name of petitioner s wife under loan account No. 214/83 dated 9/05/1983. The said loan account was closed on 4/09/1984 by repaying the same with interest. The petitioner in his reply to the charge-sheet dated 14/10/1986 stated that he did not take the loan for himself, that he had no access to the jewellery kept in the bank, that he had no authority to grant loan, that he was not responsible for getting the jewellery appraised therefore there was no act committed by him which was prejudicial to the interests of the bank. It is alleged by the bank that on account of good will, the petitioner obtained Valuation certificate by getting one of the ornaments tested and introduced the spurious gold in order to cheat the bank. Though the petitioner pointed out certain contradictions the learned single judge found that they are not material to be considered seriously. The evidence placed before the Enquiry Officer amply established that he placed the spurious gold and got the account closed. The petitioner after receiving the punishment of dismissal from service preferred an appeal before the appellate authority and the appellate authority also after taking into consideration the material available on record rejected the same. ( 11 ) THE petitioner joined Bank service on 24/03/1973. He worked as an Assistant at gandepally Branch. Management Witness no. 2 (M. W. 2) Sri N. Panduranga Rao worked as Manager of Gandepally Branch from June, 1980 to May, 1984. According to him, the petitioner was working in the same branch since one month prior to his joining in that branch. It was a newly opened branch. M. W. 2 was the Branch Manager and the petitioner was the only clerk attached to the said branch. In june, 1982 one more clerk was posted to that branch. According to M. W. 2, initially there were no gold loans from that branch. After sometime they started giving gold loans on pledge of gold ornaments. They used to get them appraised and keep them in an Iron safe having double locking system. The petitioner and himself used to have one set of keys. According to M. W. 2, initially there were no gold loans from that branch. After sometime they started giving gold loans on pledge of gold ornaments. They used to get them appraised and keep them in an Iron safe having double locking system. The petitioner and himself used to have one set of keys. He used to handover his set of keys to the petitioner as and when he was going for cash or for other purposes by leaving the branch. ( 12 ) THE charge against the petitioner is that he obtained gold loan in the name of his wife by pledging gold ornaments and removed two gold bangles and replaced with two spurious gold bangles in the ornaments pledged with the Bank in Gold Loan A/c. No. 214/83. During the inspection by a team of officers of the inspection cell of the Bank, Hyderabad commenced in the last week of August, 1984 the jewels of Gandepally Branch were verified. In the said inspection initially they noticed major difference in the weights of one ornament in Gold Loan Account No. 207/81 of one Mr. Velichetti Satyanarayana. When there was difference in weight they suspected the purity of the ornaments. The gold appraiser confirmed the suspicion and opined that the said ornament is a spurious one. Immediately on instructions from head office they checked all the jewels and re-appraised them with the assistance of the jewel appraiser Sri Varada brahmanandam and got the correct weights noted in the respective forms and noticed some spurious items in those ornaments. They noticed spurious gold in the ornaments of 5 gold Loan Accounts. The borrowers Sri velichetti Satyanarayana of Gold Loan account No. 207/81 and Sri M V. Rama chowdary in Gold Loan Account No. 399/83 are the relations of the petitioner. The borrower in Gold Loan Account No. 214/83 Smt. M. Anitha is no other than the wife of the petitioner. The petitioner was doing business for Peerless General Insurance and Finance company Ltd. in his wife s name. Sri m. V. B. S. Prasad, the borrower in Gold Loan account No. 407/83 and Sri Palacherla satyanarayana, the borrower in Gold Loan account No. 628/83 were appointed by the petitioner as agents of the said company. The petitioner was doing business for Peerless General Insurance and Finance company Ltd. in his wife s name. Sri m. V. B. S. Prasad, the borrower in Gold Loan account No. 407/83 and Sri Palacherla satyanarayana, the borrower in Gold Loan account No. 628/83 were appointed by the petitioner as agents of the said company. The inspection team noticed spurious gold items in the above five gold loan transactions and from the relationship of the borrowers the inspection team came to the conclusion that the petitioner taking advantage of the negligence of M. W. 2, the then Manager, replaced the gold ornaments in the above gold loan accounts with spurious ones. The inspection team contacted the alleged borrowers. Sri Velicheti Satyanarayana informed them that the petitioner renewed the gold loan without his knowledge and the signatures on the loan documents do not belong to him. The inspection team observed that it was done by the petitioner. It was also mentioned in Exhibit M. 5 that they noticed 4 bangles in the loan ornaments of Sri M V. Rama chowda y as spurious gold items and the said m V Rama Chowdary is a native of the petitioner s village and is also his relation. In the 4th loan relating to Sri M. V. B. S. Prasad, 8 bangles were found to be of spurious gold. The said Prasad was working as a paid secretary in the Co-operative Society. He was associated with the petitioner in Peerless agentship. The borrower s statement indicated that the ornaments belonged to the petitioner and the loan amounts were also entirely utilised by the petitioner by obtaining his signature on the documents at the petitioner s residence. In the loan of Palacherla Satyanarayana, inspection team noticed that all the seven bangles pledged with the bank are of spurious gold. The said Satyanarayana was the sub-agent for Peerless Company and was working under the petitioner. The said Satyanarayana in his statement to the inspection team stated that the ornaments belonged to the petitioner and the amount was also utilised by the petitioner. In another loan obtained in the name of Smt. M. Anitha, the wife of the petitioner, it was noticed that two bangles out of 4 bangles are of spurious gold. The above incidents indicate the background under which the transaction relating to the charge framed against the petitioner was detected. In another loan obtained in the name of Smt. M. Anitha, the wife of the petitioner, it was noticed that two bangles out of 4 bangles are of spurious gold. The above incidents indicate the background under which the transaction relating to the charge framed against the petitioner was detected. ( 13 ) THE petitioner worked in Gandepally branch from 5/05/1980 to 4/01/1984. In the statement covered by Exhibit M. 5 it was mentioned that M. W. 2 used to give both sets of keys to the petitioner whenever he goes out of station for remittances. The remittances also used to take place during business hours and in. his absence also loans were granted. The inspection team after thorough check of all the ornaments opined that the petitioner taking advantage of the negligence of the Branch manager in handing over both the sets of keys replaced the gold ornaments. After transfer from Gandepally Branch, the petitioner alleged to have indulged in similar activity of keeping the spurious gold items in his next station also. ( 14 ) IN the light of the above background it has to be considered whether there is sufficient material to find the petitioner guilty of the charge framed against him regarding the loan transaction in the name of his wife Smt. M. Anitha. ( 15 ) M. W. I, an officer of the Regional office, Hyderabad, who was one of the officers of the inspection team of the Gandepally branch stated that they noticed two bangles pledged with the bank in Gold Loan Account no. 214/83 were of spurious gold. M. W. I further stated that the jewels pledged towards jewel loan of Smt. Anitha has been reappraised in his presence and he had also got the weight of the jewels and recordings towards the same made by the appraiser. ( 16 ) M. W. 2, the then Branch Manager, Sri n. Panduranga Rao, spoke about the loan transaction and the procedure they adopted in giving the loans. He further stated that he reposed confidence on the petitioner and delivered the other set of keys available with him as and when he was going away from the branch. ( 17 ) M. W. 3, the jewel appraiser deposed that he appraised the jewels in the presence of the inspection team officials and noticed two spurious gold bangles in the loan of petitioner s wife. ( 17 ) M. W. 3, the jewel appraiser deposed that he appraised the jewels in the presence of the inspection team officials and noticed two spurious gold bangles in the loan of petitioner s wife. ( 18 ) M. W. 5, an auditor of the bank who was one of the members of the inspection team stated that after verification of the jewels they found spurious gold items. A report was prepared and sent to the concerned officials for necessary action. ( 19 ) THE enquiry officer noticed that the loan application relating to Smt. M Anitha was in the handwriting of the petitioner. Smt. Anitha signed in English as Anitha Prasad in the specimen signature form given by her for opening S. B. A/c. He also expressed a doubt whether Smt. Anitha signed the gold loan application and the connected documents. Subsequently the accounts in which the inspection team noticed spurious gold ornaments were closed by discharging the loan amounts immediately after coming to know that they will be in trouble if the probe of the inspection team comes to light. ( 20 ) THE learned single Judge after going through the entire record rejected the plea of the petitioner and dismissed the writ petition. The appellant attacked the order of the learned single Judge on the ground that the enquiry officer relied on the statements recorded by c. B. I. Officials from the witnesses which are not admissible in evidence, that the learned single Judge failed to accept the version of the jewel appraiser that he reappraised the ornaments on 27/09/1984, that there is no scope for reappraising the ornaments on 27/09/1984 since those ornaments were taken away by the borrowers on 4/09/1984 by closing the loan account and that as the petitioner was the joint custodian of the keys of the iron safe, there was no scope for him to replace gold jewels without the knowledge of joint custodian. ( 21 ) REGARDING the first objection of relying on the statements recorded by the c. B. I. , Officials, we have carefully gone through the record and found that the statement recorded by the CBI were shown to the witnesses during the course of enquiry, made them to read and after admitting the contents to be correct, marked those statements and provided opportunity to the appellant to cross- examine the witnesses with reference to those statements. When once the witnesses were made to reiterate the contents of those statements and when once there was an opportunity to cross-examine the witnesses, we do not find any force in the contention regarding the admissibility of the statements recorded by Officials. ( 22 ) REGARDING the date of reappraisal given by the jewel reappraiser, the learned counsel for the appellant submitted that since the gold ornaments were not available in the bank for the purpose of reappraisal on 27/09/1984 and as they were released to the borrower on 4/09/1984 itself, the version of the reappraiser that the ornaments were reappraised on 27/09/1984 cannot be accepted. ( 23 ) M. W. 3 the reappraiser of the gold ornaments stated that he reappraised the gold ornaments in the presence of the officials of the inspection team. The inspection was done from the last week of August till 2nd week of september, 1984, therefore, definitely the reappraisal might have been done during that period. Though the management could not explain as to how the reappraiser put the date of 27/09/1984 when the ornaments were not available in the branch as on that date, the evidence given by other witnesses amply established that the reappraisal of the gold ornaments was done by physically verifying the ornaments, therefore, the learned single Judge rightly held that the reappraisal of the ornaments was done on physical verification of those ornaments, therefore, the petitioner is not entitled to any benefit on this account. ( 24 ) REGARDING the custody of keys of the iron safe, it is the specific version of M. W. 2 that he used to give custody of the keys to the petitioner out of goodwill during his absence. There is no contrary material elicited or adduced by the petitioner, therefore, the learned single Judge rightly accepted the version of M. W. 2 regarding custody of both sets of keys with the petitioner. ( 25 ) AFTER carefully going through the record, we do not find any illegality in the procedure adopted by the enquiry officer and any infirmities in the order of the learned single judge. ( 26 ) THE learned counsel for the appellant-petitioner relied on certain decisions to impress upon this Court that the procedure adopted by the enquiry officer is illegal. ( 26 ) THE learned counsel for the appellant-petitioner relied on certain decisions to impress upon this Court that the procedure adopted by the enquiry officer is illegal. ( 27 ) IN Commissioner of Police, hyderabad City, Government of A. P. v. N. Gopal, 2002 (5) ALD 599 , a Division Bench of this Court held that the Tribunal was justified in setting aside a finding of the enquiry officer on the ground that it is not based on any evidence. This decision is not helpful to the appellant. ( 28 ) THE learned counsel while citing the above decision submitted that since the findings of the Enquiry Officer are not in accordance with the evidence available on record, they are liable to be set aside. After going through the evidence adduced before the Enquiry Officer the learned single Judge came to the conclusion that the findings are on the basis of the evidence available, on record. After carefully going through the record, we are convinced that the findings of the Enquiry Officer are on the basis of the evidence adduced by both parties. Hence the appellant cannot succeed on this point. ( 29 ) THE learned counsel for the appellant cited a decision of the Supreme Court in Union of India v. H. C. Goel, AIR 1964 SC 364 : 1964-I-LLJ-38, wherein the Supreme Court held that the findings of fact recorded by the enquiry Officer are not binding on the government and the Government is competent to differ from the conclusions of the Enquiry officer and such differing with the findings of the Enquiry Officer resulting in dismissal of a government Servant does not amount to contravening Article 311 of the Constitution of india. The Supreme Court further held that the high Court can enquire whether the order is based on no evidence. ( 30 ) IN the light of the observations made by us in the foregoing paragraphs, we are of the view that the principle laid down in the above decision is not applicable to the facts of the case on hand. ( 31 ) IN Bank of India v. Degala suryanarayana, AIR 1999 SC 2407 : 1999 (5) scc 762 : 1999-II-LLJ-682, the Supreme court held that in the appreciation of evidence in a Departmental Enquiry, the standard of proof on the basis of strict rules of evidence is not applicable to Departmental Enquiry. ( 31 ) IN Bank of India v. Degala suryanarayana, AIR 1999 SC 2407 : 1999 (5) scc 762 : 1999-II-LLJ-682, the Supreme court held that in the appreciation of evidence in a Departmental Enquiry, the standard of proof on the basis of strict rules of evidence is not applicable to Departmental Enquiry. It is sufficient to establish the charge by evidence. ( 32 ) IN the case on hand, the evidence placed by the management is sufficient to hold the appellant guilty and the learned single Judge rightly confirmed the order of the Enquiry officer and the domestic Tribunal. ( 33 ) IN Punjab National Bank v. Kunj behari Misra, AIR 1998 SC 2713 : 1998 (7) scc 84 : 1998-II-LLJ-809, the Supreme Court held that the principles of natural justice require to give opportunity to the delinquent. ( 34 ) SUFFICIENT opportunity was given to the petitioner during the course of enquiry, the principle laid down by the Supreme Court in the above judgment is not applicable to the facts of this case. ( 35 ) IN the light of the above findings, we find no merits in the appeal. ( 36 ) IN the result, the appeal is dismissed, but under the circumstances without costs.