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Madhya Pradesh High Court · body

2003 DIGILAW 715 (MP)

ROOPCHAND WASWANI v. STATE BANK OF INDIA

2003-05-13

S.P.KHARE

body2003
S. P. KHARE, J. ( 1 ) THIS is a writ petition under Articles 226 and 227 of the Constitution of India for quashing order dated 20/03/1984 of the chief General Manager by which the petitioner has been dismissed from service. ( 2 ) IT is not in dispute that the petitioner was an officer in the State Bank of India, bhopal in the Junior Management Cadre grade-I. He was served with a charge-sheet on 24/06/1978. The charge against him was that while working as a Clerk in the Bank in the year 1971 he had committed a fraud upon the Bank to the extent of Rs. 35,513/ -. The petitioner pleaded not guilty to this charge. The departmental enquiry was held by the enquiry officer in which the petitioner was given an opportunity of hearing. The enquiry report is dated 11/11/1983 (Annexure-H ). The enquiry officer in his report found at two fictitious accounts were opened in the names of j. R. M. Rao and R. P. Saxena, spurious credit entries were made in those accounts and the money was withdrawn. There was no direct evidence, to hold that the petitioner got these accounts opened as the documents in question were found missing from the Bank. The enquiry officer held the petitioner guilty of the charge on the basis of circumstantial evidence. It was found that the petitioner had remitted a total amount of Rs. 20,300/- from Bhopal to shri M. K. Gupta of New Delhi through five bank drafts. Three of these bank drafts were of the State Bank of India. One of the bank drafts was for Rs. 4,000/- and it is an admitted fact that it was issued on the application of the petitioner by the Bank. Shri M. K. Gupta during the course of the preliminary enquiry wrote letter dated 10/02/1977 to the Bank to the effect that these five drafts were received by him from the petitioner. The two bank drafts were issued at the instance of J. R. M. Rao. These were for Rs. 5,500/- and Rs. 6,400/.During the course of his evidence in the enquiry shri M. K. Gupta resiled from his letter and stated that only one bank draft of Rs. The two bank drafts were issued at the instance of J. R. M. Rao. These were for Rs. 5,500/- and Rs. 6,400/.During the course of his evidence in the enquiry shri M. K. Gupta resiled from his letter and stated that only one bank draft of Rs. 4,000/- was received by him from the petitioner and the two other bank drafts issued by the State Bank of India, Bhopal were received by him from one Shri Raman Rao. The enquiry officer after appreciation of the evidence held that the statement of Shri M. K. Gupta in his letter dated 10/02/1977 was true and he made a false statement during the enquiry that the two bank drafts were received by him from Raman Rao. According to Shri M. K. Gupta the petitioner had sent the bank draft of Rs. 4,000/- to him for purchasing a DDA plot. On cross-examination of Shri M. K. Gupta it was revealed that he did not know Raman Rao and the subsequent letter which is said to have been written by him to the Bank did not contain true facts. The report of the enquiry officer holding the petitioner guilty for this fraud was accepted by the Chief General Manager, who was the disciplinary authority and the petitioner was dismissed from service by the impugned order. His appeal was rejected by the appellate authority. The petitioner filed a writ petition earlier which was registered as Misc. Petition no. 2771 of 1984 and by order dated 20/11/1986 this Court directed the appellate authority to hear the petitioner again and pass a reasoned order. That was done. The appellate authority (Local Board) passed a detailed order dated 26/12/1987 and rejected the appeal of the petitioner. The appellate authority found that nexus between the petitioner and the fraud has been established by the circumstantial evidence. ( 3 ) THE petitioner's case is that the finding of the enquiry officer is perverse and unreasonable. It is stated that the petitioner had nothing to do with the opening of the fictitious accounts or withdrawal of money from those accounts. According to the petitioner, the draft of Rs. 4,000/- sent by him to Shri M. K. Gupta was not established as having been issued on withdrawal of the money from these accounts and, therefore, the charge is not brought home to the petitioner. According to the petitioner, the draft of Rs. 4,000/- sent by him to Shri M. K. Gupta was not established as having been issued on withdrawal of the money from these accounts and, therefore, the charge is not brought home to the petitioner. It is submitted that the letter dated 10/02/1977 of Shri M. K. Gupta could not be relied upon in preference to his evidence before the enquiry officer. It is contended that the petitioner could not be punished on mere suspicion only. The other point which has been raised in the petition is that the petitioner was appointed by the executive Committee as per rules which were prevalent at the time of his appointment and, therefore, his services could not be terminated by the Chief General Manager who is inferior in rank to the Executive Committee. ( 4 ) THE case of the respondents is that there was sufficient circumstantial evidence by which it was found that the petitioner has committed fraud upon the Bank and, therefore, he has been dismissed from service. It is pointed out that the petitioner did not examine himself during the course of the inquiry proceedings and therefore there was no rebuttal of the material against him. It is also stated in the return that the Chief General Manager was the appointing authority of the Officers of the rank of the petitioner at the time of imposition of the penalty also and, therefore, the impugned order does not suffer from any legal infirmity. ( 5 ) THE learned counsel for both the sides have been heard. The points for determination are (a) whether the finding of the enquiry officer that the petitioner has committed the fraud is perverse and (b) whether the Chief general Manager was not competent to pass the impugned order by which the petitioner has been dismissed from service. ( 6 ) POINT (a): the enquiry report dated 11/11/1983 and the order dated 26/12/1987 of the appellate authority have been scrutinized by this Court. The deposition of Shri M. K. Gupta has also been perused. On consideration of the entire material, this Court is of the opinion that the finding of the enquiry officer regarding guilt of the petitioner cannot be said to be perverse or unreasonable. The deposition of Shri M. K. Gupta has also been perused. On consideration of the entire material, this Court is of the opinion that the finding of the enquiry officer regarding guilt of the petitioner cannot be said to be perverse or unreasonable. It is not in dispute that the two fictitious accounts were opened in the Bank, spurious credit entries were made therein and the money was withdrawn. The only question is whether the petitioner either directly or indirectly had his hand in the commission of this fraud. An amount of Rs. 20,300/- was sent to Shri M. K. Gupta, New Delhi from Bhopal through 5 bank drafts. Three of these bank drafts were issued by the State Bank of India, Bhopal Branch. The two other drafts were issued by two other banks. The draft of Rs. 4,000/- was admittedly issued by the State Bank of India at the instance of the petitioner. Shri M. K. Gupta admitted during the course of his evidence that he had written letter dated 10/02/1977 to the bank. In this letter it is mentioned that Shri gupta had received three drafts drawn by the state Bank of India, Bhopal from the petitioner. The two bank drafts for Rs. 5,500/- and for Rs. 6,400/- were issued by the State Bank of India at the instance of J. R. M. Rao. In the letter Shri gupta wrote that he did not know Shri Rao and these drafts were received by him from the petitioner, in his evidence Shri Gupta said that he has received a draft of Rs. 4,000/- only from the petitioner and the two other drafts of the state Bank of India were actually received by him from Shri Rao. According to Shri Gupta, he wrote the letter dated 10/02/1977 on the persuasion of the Bank Officer who conducted the preliminary inquiry, but he is said to have clarified through subsequent letter dated 23/02/1977 that the two drafts were received by him from Shri Raman Rao. On his cross-examination it was revealed that he, does not actually know Raman Rao and whether he actually wrote the subsequent letter was also doubtful. On his cross-examination it was revealed that he, does not actually know Raman Rao and whether he actually wrote the subsequent letter was also doubtful. According to Shri Gupta, dda plot was neither purchased in the name of the petitioner or in the name of Shri Rao and he is said to have refunded the money received by him from Shri Rao and the petitioner to them subsequently in instalments. It appears that the conduct of Shri Gupta is also doubtful and for that reason he is trying to extricate the petitioner from the charge. As already stated the finding of the enquiry officer on a detailed analysis has been subsequently confirmed by the appellate authority. The findings of these two authorities cannot be said to be perverse or unreasonable. There was definitely circumstantial evidence against the petitioner. He did not adduce his own evidence to rebut the material against him. It is argued on' behalf of the petitioner that as per rules it was necessary for the enquiry officer to examine the petitioner and then he could have explained the incriminating material. In the opinion of this court it was for the petitioner, who was an officer of the Bank, to give his own evidence to explain how he sent the bank draft of Rs. 4,000/- and other two bank drafts from Bhopal to Shri M. K. Gupta. The burden shifted to the petitioner to show his connection with Shri m. K. Gupta. It is simply because the petitioner was not examined as per Rule 50 (2) (xvii) by the Enquiry Officer, it cannot be said that he is in any way prejudiced in his defence. The departmental enquiry is not like a criminal trial where if the accused is not examined under section 313 Criminal Procedure Code, the trial may be vitiated. The evidence of Shri M. K. Gupta was recorded in the presence of the petitioner and the letter dated 10/02/1977 was supplied to the petitioner and, therefore, it was necessary for him to examine himself before the enquiry officer and to explain the circumstances which were appearing against him. ( 7 ) THE testimony of Shri M. K. Gupta cannot be brushed aside simply on the ground that he has turned hostile. The Enquiry Officer could accept that part of his evidence which appeared to have a grain of truth. ( 7 ) THE testimony of Shri M. K. Gupta cannot be brushed aside simply on the ground that he has turned hostile. The Enquiry Officer could accept that part of his evidence which appeared to have a grain of truth. The Enquiry officer was in his right to hold that the letter dated 10/02/1977 written by Shri M. K. Gupta contained the true statement and his evidence given during the course of inquiry was false. The Supreme Court in Gum Singh v. State of Rajasthan, AIR 2001 SC 330 , has observed that the terms "hostile", "adverse" or "unfavourable" witnesses are alien to the indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of english law. The rule of not permitting a party calling the witness to cross-examine are relaxed under the common law by evolving the terms "hostile witness" and "unfavourable witness". Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India the right to cross-examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under section 154 to ask questions which might be put in cross-examination by the adverse party the Indian Evidence Act leaves the matter entirely to the discretion of the Court. The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances, permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross- examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy. ( 8 ) THOUGH the above mentioned observations were made in a criminal case, the principle which has been laid down to deal with testimony of a hostile witness would also be applicable to a civil suit or a departmental enquiry proceedings. In view of the principle laid down in the above decision the Enquiry officer could accept that part of the testimony of Shri M. K. Gupta which was close to the truth and discard that which was untrue. ( 9 ) THE learned counsel for the petitioner has cited a number of rulings to support the argument that if the finding of the Enquiry officer is perverse or such which no person could have reached then that finding would not be binding on the Court. There is no quarrel with this principle of law. But in the present case, as stated above, the finding of the enquiry officer cannot be said to be perverse or unreasonable. There was evidence which could form the basis for the conclusion drawn by the enquiry Officer and, therefore, it is not permissible for this Court to sit in appeal over the finding of fact reached by the Enquiry officer and confirmed by the appellate authority. In B. C. Chaturvedi v. Union of india, AIR 1996 SC 484 : 1995 (6) SCC 749 : 1996-I-LLJ-1231, the Supreme Court has held that where the findings of the disciplinary authority are based on some evidence, the court or Tribunal cannot reappreciate the evidence and substitute its own findings. In B. C. Chaturvedi v. Union of india, AIR 1996 SC 484 : 1995 (6) SCC 749 : 1996-I-LLJ-1231, the Supreme Court has held that where the findings of the disciplinary authority are based on some evidence, the court or Tribunal cannot reappreciate the evidence and substitute its own findings. Recently in Lalit Popli v. Canara Bank 2003 (3) SCC 583 : 2003-II-LLJ-324 all the earlier cases on this point have been considered and it has been reiterated that if there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of thecourt to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. ( 10 ) AS stated above the finding of the disciplinary authority in the present case cannot be said to be perverse and, therefore, the impugned order based on that finding cannot be said to be unjustified. ( 11 ) POINT (b): there is direct decision of the Supreme court in State Bank of India v. Vijaya Kumar, air 1991 SC 79 : 1990 (4) SCC 481 : 1991-II-LLJ-122 where it has been held that the dismissal of the delinquent bank officer appointed initially by the Executive committee of the Bank, by the Chief General Manager is valid, even though he is an authority lower in rank than the Executive Committee, as at the relevant time when the order was passed the chief General Manager has become the appointing authority under the amended regulations. The right which has been conferred on the employees of the State Bank contained in Regulation 55 (2) (a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. A comparison of the provisions contained in article 311 (1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 52 (2) (a) shows that there is material difference between the language used in the Two provisions. Under Article 311 (1) the words used are "by which he was appointed". A comparison of the provisions contained in article 311 (1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 52 (2) (a) shows that there is material difference between the language used in the Two provisions. Under Article 311 (1) the words used are "by which he was appointed". In Regulation 55 (2) (a) there are no such words "by which he was appointed" and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority. Thus the right guaranteed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointing authority. The right that an officer or employee of the State Bank of India cannot be dismissed from service by an authority lower than the appointing authority is a creation of statutory rules and regulations. Admittedly the employees of the State Bank cannot seek any protection under Article 311 (1) of the constitution. The employees of the State Bank can only claim such rights which have been conferred under Regulation 55 (2) (a) of the general Regulations. The only right conferred under the said provision is that the officers or employees of the State Bank cannot be dismissed by an authority lower than the appointing authority. When the order of dismissal has been passed, Chief General manager had already become the appointing authority and as such the order of dismissal cannot be said to have been passed by authority lower than the appointing authority. ( 12 ) AGAIN in Satinder Singh Arora v. State bank of Patiala and others, 1992 Supp. (2) scc 224, a Bank Officer was appointed by the board of Directors. At the time of passing of the order of removal from service the managing Director was the appointing authority. Therefore, the order passed by him was held to be valid. It was further held that the bank employees are not entitled to claim protection under Article 311 (1) of the constitution of India. It is further clarified that the mere fact that by amendment the appointing authority designated is lower in rank than the board should make no difference. Therefore, the order passed by him was held to be valid. It was further held that the bank employees are not entitled to claim protection under Article 311 (1) of the constitution of India. It is further clarified that the mere fact that by amendment the appointing authority designated is lower in rank than the board should make no difference. ( 13 ) THE above mentioned two decisions of the Supreme Court have been followed recently by this Court in C. R. Gopal v. Board of directors, MPSCSCL 2003 (1) M. P. H. T 61 and it has been held that the competence of the appointing authority is to be decided at the time of passing of the removal order. In case of the officers or the employees of the Corporation it is not material that by which authority they were actually appointed as Article 311 (1) of the constitution does not apply to them. Therefore, the impugned order which has been passed by the Chief General Manager in the present case who is the appointing authority as per State bank of India (Supervising Staff) Service rules, 1975 cannot be said to be suffering from any infirmity simply because the petitioner was appointed by the executive committee as per 1958 Rules. ( 14 ) THE petition is dismissed. .