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2013 DIGILAW 3706 (MAD)

Zonal Manager Bank of India v. V. Devadass

2013-10-28

N.PAUL VASANTHAKUMAR, R.MAHADEVAN

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Judgment : N. Paul Vasanthakumar, J. 1. Heard Mr.Sanjay Mohan, learned counsel for the appellant and Mr.Silambanan, learned senior counsel for the respondent. 2. This Writ Appeal is filed against the order made in Writ Petition No.14684 of 2000 dated 7.7.2010, by the management, which is the Bank of India. 3. The case of the respondent before the learned Single Judge was that he was appointed as clerical Staff in Bank of India on 8.2.1978 and while working as Clerk-cum-Cashier in Kilukottai branch, certain alleged irregularities were noticed and he was suspended pending enquiry on 16.8.1996. A charge memo was issued on 5.12.1996 containing the following charges: "Charge No.I: Shri S.Natarajan, a customer of Bank's Killukottai Branch, had availed a loan of Rs.25,000/- from the branch for procuring submersible electric motor during November 1990. On 27.7.1995, when Shri Natarajan came to the branch for closing his loan account, you informed him that he has to pay Rs.16,693/-for closing the account, whereas the actual amount required was Rs.16,193/- only. You filled up the paying-in-slip and obtained the signature of Shri Natarajan on the same and collected Rs.16,693/-from him. While filling up the paying-in-slip, you with fraudulent intention had written Rs.16,693/- on the counterfoil and Rs.16,693/-on the challan and returned the counterfoil to Shri Natarajan by affixing bank's rubber stamp. In the loan pass book, loan ledger (20/13), Receipt Scroll Book, Cash Receipt Book and Supplementary Register, you made the credit entry of Rs.16,693/-. Thus, you fraudulently collected Rs.500/- in excess than the required amount from Shri Natarajan, while closing his loan account and misappropriated the same. Your aforesaid act of fraudulently collecting excess amount of Rs.500/- than the required amount from Shri Natarajan, while closing his loan account and misappropriation of the same amounts to gross misconduct in terms of para 19.5(j) of the Bipartite Settlement dated 19.10.1966, which reads as follows: "doing any act of prejudicial to the interest of the Bank or gross negligence involving or likely to involve the Bank in serious loss". CHARGE II:- Shri P.Sivakumar, a customer of Bank's Killukottai branch had availed Jewel loan from the branch. On 8.8.95 when Shri Sivakumar wanted to close his loan account, you collected Rs.6,315/- from him, whereas the amount required to close the account was Rs.6,115/-. CHARGE II:- Shri P.Sivakumar, a customer of Bank's Killukottai branch had availed Jewel loan from the branch. On 8.8.95 when Shri Sivakumar wanted to close his loan account, you collected Rs.6,315/- from him, whereas the amount required to close the account was Rs.6,115/-. While filling up the paying-in-slip, you entered an amount of Rs.6,315/-on the counterfoil and Rs.6115/- on the challan with dishonest intention and affixed Bank's rubber stamp and returned the counterfoil to Shri Sivakumar. In the other Bank's records viz., Receipt Scroll Book, Cash Receipt book and Supplementary Register you made the entry of Rs.6,115/- only. Thus, you fraudulently collected Rs.200/- in excess than the required amount while closing the loan account of Shri P.Sivakumar. Your aforesaid act of fraudulently collecting an amount of Rs.200/- in excess than the required amount from Shri P.Sivakumr while closing his loan account amounts to gross misconduct of doing an act prejudicial to the interest of the Bank in terms of para 19.5 (j) of the Bipartite Settlement dated 19.10.1966, which reads as follows: "doing any act prejudicial to the interest of the Bank or gross negligence involving or likely to involve the Bank in serious loss". CHARGE III: Shri A.Jesuraj, a local rice mill owner of Killukotti area was having SB account No.1257 with the Branch. On 8.8.95, there was a deposit of Rs.1000/-in his SB Account. You, with a fraudulent intention, altered the figure of Rs.1000/- in the paying-in-slip dated 8.8.95 to make it appear as Rs.800/-. You made similar alterations from Rs.1000/-to Rs.800/- in the Receipt Scroll Book and Cash Receipt Book. You further altered the credit balance appearing in the said SB Account 1257, from Rs.1589/- to the figure Rs.1,389/- in the ledger. Further you filled up a paying-in-slip dated 8.8.95 crediting an amount of Rs.200/-which you siphoned off from the SB account of Mr.Jesuraj in the aforesaid manner, to the SB account of Shri P.Sivakumar, by writing the name of Shri P.Sivakumar, but the SB Account No.was wrongly written as 2507 instead of 2570. thus, the said amount of Mrs.S.Maria Salomi. After having realised this, you reversed these entries, on 17.11.95, debited Rs.200/- from the Account No.2507 of Mrs.S.Maria Salomi and credited the said amount to SB Account No.2570 of Mr.P.Sivakumar. thus, the said amount of Mrs.S.Maria Salomi. After having realised this, you reversed these entries, on 17.11.95, debited Rs.200/- from the Account No.2507 of Mrs.S.Maria Salomi and credited the said amount to SB Account No.2570 of Mr.P.Sivakumar. To hide your aforesaid fraudulent acts, you made alterations in the jotting sheet No.3 of Ledger No.7 from Rs.4089.20 to Rs.3889.20 and also from Rs.1601.20 to Rs.1401.20. To hide the alterations made against the SB account No.1257 from Rs.1000/-to Rs.800/-, which was in original page No.35 and substituted with page No.134 and 135 which were removed from their original place in the Register. You had rewritten the entries of the original page No.35 of the Register and made a credit entry of Rs.800/-against the SB Account No.1257. To make the alteration of Page Number not visible, you pasted two sheets together. To regularise the credit in the Account No.1257, of Shri Jesuraj from which you siphoned off an amount of Rs.200/- on 8.8.95, you deposited an amount of Rs.200/-in the said account No.1257 on 25.9.95. Your aforesaid acts of unauthorisedly altering the Bank's records with dishonest intention and removal of the original pages from the Supplementary Register to hide your fraudulent acts amount to Gross Misconduct of doing acts prejudicial to the interest of the Bank in terms of para 19.5 (j) of the Bipartite Settlement dated 19.10.1966, which reads as follows: "doing any act prejudicial to the interest of the Bank or gross negligence involving or likely to involve the Bank in serious loss". CHARGE NO.IV: Shri S.Narayana Chettiar, a customer of Killukottai Branch had availed a jewel loan of Rs.10,600/- from Bank's Killukottai Branch. On 25.7.1995, when Shri N.Ramalingam, S/o.Mr.S.Narayana Chettiar, came to the Branch, on behalf of this father, to close the loan account, you informed him that he has to pay Rs.12,312/-to close the account and collected the same amount of Rs.12,312/- from him. You had filled up the paying-in-slip and entered Rs.12,312/- in both challan and the counterfoil and returned the counterfoil to Mr.N.Ramalingam after affixing Cash Received Stamp with your signature. After having collected Rs.12,312/- you committed forgery by way of altering the amount of Rs.12,312/- to Rs.12,212/- in the paying-in-slip. In the Receipt Scroll Book, Cash Receipt Book and the Supplementary Register, you made credit entry of Rs.12,212/-only. After having collected Rs.12,312/- you committed forgery by way of altering the amount of Rs.12,312/- to Rs.12,212/- in the paying-in-slip. In the Receipt Scroll Book, Cash Receipt Book and the Supplementary Register, you made credit entry of Rs.12,212/-only. Thus you collected an amount of Rs.100/-in excess than the required amount from Shri Ramalingam while closing the loan account and misappropriated the amount. Your aforesaid acts of collecting excess amount than the required amount for the closure of loan account of Shri Narayana Chettiar, and forging by way of altering the amount from Rs.12,312/- to Rs.12,212/- in the paying-in-slip amount to gross misconduct of doing acts prejudicial to the interest of the Bank in terms of para 19.5(j) of the Bipartite Settlement dated 19.10.1966, which reads as follows: "doing any act prejudicial to the interest of the Bank or gross negligence involving or likely to involve the Bank in serious loss". CHARGE NO.V: Shri E.Augustin, a customer of Killukottai Branch, had availed Jewel Loan of Rs.2700/-on 14.10.1993 from the Branch. On 13.7.95, when Shri Augustin came to the Branch for closing his loan account, you informed him that he has to pay Rs.1105/- to close his loan account, when the actual amount required was Rs.1005/-only. You filled up the paying-in-slip by writing Rs.1105/- on the counterfoil and Rs.1005/- on the challan. You collected Rs.1105/- from Shri Augustin and returned the counterfoil by affixing Bank's Cash Received Stamp. In the Cash Receipt Book, Receipt Scroll Book and Supplementary Register, you made the entry of Rs.1005/-only. Thus, you collected an amount of Rs.100/- in excess than the required amount from Shri Augustin while closing his loan account, by fraudulent means and misappropriated the same. Your aforesaid act of collecting Rs.100/-in excess than the required amount for closing the loan account of Shri Augustin, and misappropriating the same, amounts to gross misconduct of doing acts prejudicial to the interest of the Bank in terms of para 19.5 (j) of the Bipartite Settlement dated 19.10.1966, which reads as follows: "doing any act prejudicial to the interest of the Bank or gross negligence involving or likely to involve the Bank in serious loss". Enquiry to the five charges was ordered. One Mr.N.Parthasarathy was appointed as the Presenting Officer to conduct the prosecution/present the case of the management. One Mr.T.K.Ramakrishnan was permitted to be defence representative. Enquiry to the five charges was ordered. One Mr.N.Parthasarathy was appointed as the Presenting Officer to conduct the prosecution/present the case of the management. One Mr.T.K.Ramakrishnan was permitted to be defence representative. On 20.3.1997, ie., before the commencement of the enquiry, the defence representative submitted a representation containing list of witnesses to examine about five documents to disprove the charges with liberty to submit further list. On the same day, the defence representative required to change the Presenting Officer as he is to be examined as defence witness, as he cannot take up dual role as witness as well. Ignoring the request, the Bank proceeded with the enquiry and ultimately on the basis of the findings given, final order was passed on 27.7.1999 and dismissed the respondent and the said order was confirmed by the appellate authority. The said orders were challenged on various grounds including the violations of the principles of natural justice and fair play in procedures. 4. The learned Single Judge accepted the contentions raised on behalf of the respondent stating that the Presenting Officer, who was appointed to present the management case during the enquiry was to be examined in respect of two charges as a defence witness, inspite of giving objections by the respondent on 20.3.1997 was allowed to be a Presenting Officer. The learned Single Judge, accepting the said contention, gave a finding that when the respondent has made a representation at the initial stage, the management ought to have changed the Presenting Officer and proceeded with the enquiry through another Presenting Officer in compliance of the principles of natural justice and set aside the dismissal order as confirmed in appeal and remitted the matter to the second appellant to hold fresh enquiry and complete the same by following due process and pass final orders based on the enquiry officer's report to be submitted within a period of six months. 5. Having aggrieved over the above order of the learned Single Judge, the appellants have filed this Writ Appeal contending that only in respect of the two charges, the Presenting Officer has to be examined as a defence witness as per the respondent's contention and in respect of the other three charges, the Presenting Officer need not be examined as witness and therefore, the learned Single Judge was not justified in setting aside the order of punishment on the reasons stated. The learned counsel for the appellants further submitted that no prejudice had been caused by not changing the Presenting Officer. 6. It is an admitted case that though the enquiry was conducted for five charges, admittedly, in respect of two charges the Presenting Officer was to be examined as a defence witness in a common/composite enquiry. When the enquiry is conducted, if the Presenting Officer has to appear as a defence witness in respect of some charges in the same enquiry, then he cannot function as a prosecutor as well as a witness. Further, due to the said action of the management, the respondent could not examine the said N.Parthasarathy as defence witness who was the author of many important documents to disprove the charges levelled against the respondent. The action of the bank in such circumstances caused serious prejudice to the respondent in the enquiry. It is a settled principle of law that departmental enquiry is quasi judicial proceedings and its finding will definitely has a bearing on the disciplinary proceedings. Here the management accepted the enquiry report and imposed major punishment. Thus, the basic principles of law natural justice and fair play in procedures must be adhered to. 7. In such a view of the matter, we are not inclined to take a different view than the one taken by the learned Single Judge. Hence, the Writ Appeal is dismissed giving direction to the appellants/Bank to comply with the directions issued by the learned Single Judge, within a period of six months from today. No costs. Consequently, connected miscellaneous petition is closed.