State Bank of Bikaner
Vs Nemi Chand Nalwaya
O R D E R
R. V. Raveendran J.
1.
The
respondent was employed as a clerk in the Kalindri branch of the appellant Bank.
He was issued a charge-sheet dated 30.8.1988. The two charges against him are
extracted below :
i.
On
14.10.1987, you disclosed the balance of SB Account No.1025 of Shri Dharamchand
Nathaji lying in in-operative account to an unidentified person posing himself
as the said account holder though the person was not having even Pass Book of
that account. This disclosure of secrecy led a fraudulent withdrawal of Rs.6,000/-
from the said account thereby putting the bank into loss.
ii.
On
14.10.1987, you have advised Shri I.M. Rawal, the counter clerk handling
Savings Banks ledgers to transfer the balance lying in account number 1025 in
the name of Shri Dharam Chand Nathaji from in-operative Savings Bank ledger to that
of operative ledgers without first obtaining the permission of the Branch Manager
which is a pre-requirement in all such cases. It is further alleged that you have
collected the withdrawal form purported to have been signed by the depositor,
handed over the same to Shri I.M. Rawal, the counter clerk, obtained token and after
it was passed for payment by the Branch Manager, obtained payment from paying cashier
Shri S.R. Meghwal
The real depositor
has subsequently complained that the signature on withdrawal form was forged
and the matter is now under police investigation."The charge-sheet
followed a preliminary enquiry by one H. S. Sharma, an officer of the appellant
bank, in which the respondent broadly admitted the facts constituting the subject
matter of the two charges.
2.
A
joint inquiry was held in respect of the charges against the respondent and two
others namely I.M. Rawal and S.R. Meghwal. Several witnesses were examined. The
Inquiry Officer submitted a report dated 12.6.1989 holding that both the
charges against the respondent were proved. He also held that the charges against
I.M. Rawal and S.R. Meghwal were also proved. The disciplinary authority considered
the inquiry report. He was of the view that on the material placed in the inquiry,
the respondent was not guilty of the first charge. He, however, concurred with
Inquiry Officer in regard to the finding of guilt recorded in respect of the second
charge. He, therefore, issued a show cause notice dated 23.6.1990 proposing to
impose the punishment of dismissal in regard to the second charge. After
considering the respondents' reply, the disciplinary authority, by order dated
1.8.1990, imposed the punishment of dismissal. The matter rested 3there for
several years.
3.
In
the meanwhile, on the basis of a complaint by the Branch Manager, a
charge-sheet was filed before the Chief Judicial Magistrate, Sirohi, in regard
to the allegations which were the subject matter of the departmental enquiry. The
criminal court acquitted the respondent by judgment dated 7.7.1994, holding
that charges were not proved beyond doubt. Thereafter, he filed a writ petition
(WP No.5761/1994) challenging his dismissal, on the ground that he was acquitted
in the criminal case. The said writ petition was disposed of by a brief order
dated 26.5.1997 observing that he may avail the remedy of appeal and the appellate
authority may consider the explanation for delay in submitting the appeal.
4.
The
respondent filed an appeal before the Appellate Authority, with an application for
condonation of delay. The appellate authority, by order dated 7.10.1997, dismissed
the application for condonation of delay and consequently dismissed the appeal.
5.
The
respondent challenged the order of the appellate authority in WP No.450/1998. A
leaned Single Judge of the Rajasthan High Court dismissed the writ petition on the
ground that the appellate authority had not committed any error in dismissing
the appeal on the ground of delay. The respondent filed a special appeal and
the division bench of the High Court allowed the appeal by the impugned
judgment dated 4.4.2006. The pendency of the criminal case was accepted as sufficient
explanation regarding delay. The division bench held that the non-filing of the
appeal by the respondent in time was due to a bona fide impression that he could
do so after the disposal of the criminal proceedings. With reference to merits,
the division bench held that no wilful or fraudulent conduct with intention to cause
loss to the appellant Bank, nor misappropriation by the respondent, was made
out. The division bench was of the view that the case was not one where respondent
had acted in wilful dereliction of duty; and that in an increasing customer-friendly
atmosphere in the Bank, the respondent had acted bona fide and allowed the person
considered by him to be a valued customer to operate on the account not realising
that such person was impersonating the account holder. The High Court was of
the view that in such circumstances, the question of loss of confidence would
not arise and the punishment of dismissal was grossly disproportionate to the misconduct.
Therefore, it set aside the order of dismissal and directed reinstatement with
full backwages and consequential benefits. The said order is challenged in this
appeal by special leave.
6.
It
is now well settled that the courts will not act as an appellate court and reassess
the evidence led in the domestic enquiry, nor interfere on the ground that
another view is possible on the material on record. If the enquiry has been fairly
and properly held and the findings are based on evidence, the question of
adequacy of the evidence or the reliable nature of the evidence will not be
grounds for interfering with the findings in departmental enquiries. Therefore,
courts will not interfere with findings of fact recorded in departmental
enquiries, except where such findings are based on no evidence or where they are
clearly perverse. The test to find out perversity is to see whether a tribunal
acting reasonably could have arrived at such conclusion or finding, on the
material on record. Courts will however interfere with the findings in disciplinary
matters, if principles of natural justice or statutory regulations have been
violated or if the order is found to be arbitrary, capricious, mala fide or based
on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995
(6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India
vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay
vs. Shahsi Kant S Patil - 2001 (1) SCC 416).
7.
When
a court is considering whether punishment of `termination from service' imposed
upon a bank employee is shockingly excessive or disproportionate to the gravity
of the proved misconduct, the loss of confidence in the employee will be an
important and relevant factor. When an unknown person comes to the bank and claims
to be the account-holder of a long inoperative account, and a bank employee, who
does not know such person, instructs his colleague to transfer the account from
"dormant" to "operative" category (contrary to instructions
regulating dormant accounts) without any kind of verification, and accepts the
money withdrawal form from such person, gets a token and collects the amount on
behalf of such person for the purpose of handing it over to such person, he in
effect enables such unknown person to withdraw the amount contrary to the
banking procedures; and ultimately, if it transpires that the person who claimed
to be account holder was an imposter, the bank can not be found fault with if
it says that it has lost confidence in the employee concerned. A Bank is
justified in contending that not only employees who are dishonest, but those who
are guilty of gross negligence, are not fit to continue in its service.
8.
Several
witnesses were examined to prove the charge. One of them was H.S. Sharma who
conducted the preliminary inquiry and to whom the respondent had made a statement
broadly admitting the facts which constituted the subject 7matter of the second
charge. I.M. Rawal, who was the cashier and I.C. Ojha, the officiating Branch
Manager were also examined. Based upon their evidence, the Inquiry Officer found
the respondent to be guilty of the second charge and that has been accepted by the
disciplinary authority. The High Court has interfered with the said finding
without expressly holding that the said finding of guilt was erroneous. The
High Court has proceeded as if it was sitting in appeal over the departmental inquiry
and interfered with the finding on a vague assumption that the respondent must have
acted bonafide in an "increasing customer friendly atmosphere". There
was no justification for the division bench to interfere with the finding of guilt.
9.
The
fact that the criminal court subsequently acquitted the respondent by giving him
the benefit of doubt, will not in any way render a completed disciplinary proceedings
invalid nor affect the validity of the finding of guilt or consequential
punishment. The standard of proof required in criminal proceedings being
different from the standard of proof required in departmental enquiries, the same
charges and evidence may lead to different results in the two proceedings, that
is, finding of guilt in departmental proceedings and an acquittal by giving
benefit of doubt in the criminal proceedings. This is more so when the departmental
proceedings are more proximate to the 8incident, in point of time, when
compared to the criminal proceedings. The findings by the criminal court will
have no effect on previously concluded domestic enquiry. An employee who allows
the findings in the enquiry and the punishment by the disciplinary authority to
attain finality by non-challenge, cannot after several years, challenge the decision
on the ground that subsequently, the criminal court has acquitted him.
10.
We
are, therefore, of the view that the High Court was not justified in quashing the
punishment and directing reinstatement with backwages and consequential benefits.
In fact, the order of the High Court directing back wages amounts to rewarding
a person who has been found guilty of a misconduct.
11.
However
having regard to the fact that the proven charge did not involve either misappropriation
or fraudulent conduct and the other circumstances of the case, we are of the
view that the punishment of dismissal should be substituted by compulsory retirement,
which does not involve reinstatement.
12.
We,
accordingly, allow the appeal and set aside the judgment of the High Court. We
uphold the finding of guilt recorded by the disciplinary authority, but modify the
punishment from `dismissal' to `compulsory retirement'. There is therefore no
question of grant of any back-wages.
......................J.
( R.V. RAVEENDRAN )
......................J.
( A.K. PATNAIK )
New
Delhi;
March
01, 2011.
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