Judgment:
ELIPE DHARMA RAO, J.
1. The appellant, who is a Chartered Accountant, was initially appointed as an Officer in the respondent Bank in the year 1972 and later on rose upto the level of Senior Manager Grade Scale IV. While he was working as Chief Manager of Janpath Branch, New Delhi, from March 1988 to May, 1990, on the allegation that he opened number of automatic revolving letters of credit under various accounts of Indodan Industries and Foremost Industries without any reinstatement clause and other such irregularities, he was issued with a charge memo. on 10.1.1991 with charge Nos.1 to 3. Thereafter, on 6.5.1991, additional charges were also framed against him as Charge Nos.4 to 7. For easy reference, all the charges framed against the appellant are extracted hereunder:
“CHARGE No.1:
Mr.N.Ramakrishnan, Chief Manager, while working as Chief Manager, Janpath during the years 1989 and 1990 opened number of revolving letter of credits (L.Cs) in various accounts of Indana Group of Companies as detailed in Statement of Imputation and while opening the revolving letter of credits he committed various irregularities in the issuance of the same. The said revolving letter of credits were opened without reinstatement clause against the terms of sanction, manual of instructions and Central Office guidelines (as detailed in the statement of imputation). Mr.N.Ramakrishnan did not take all possible steps to ensure and protect the interest of the Bank and did not discharge his duties with utmost integrity, honesty, devotion and diligence which was unbecoming of a Bank Officer and is, thus, charged under Regulation 3.1 and 3.3 of the Central Bank of India Officer Employees (Conduct) Regulations, 1976 read with Regulation 24 which is punishable under Regulation 4 of Central Bank of India Officer Employees (Discipline & Appeal) Regulations, 1976. CHARGE No.2:
Mr.N.Ramakrishnan allowed unauthorised withdrawal of Rs.47 lacs approximately in the accounts of Foremost Industries (I) Limited and Indodan Industries Limited at the time when these accounts were grossly overdrawn. In spite of repeated reminders from zonal office, he failed to monitor the accounts and to bring the account within sanctioned limit. Mr.N.Ramakrishnan did not take all possible steps to ensure and protect the interest of the Bank and did not discharge his duties with utmost integrity, honesty, devotion and diligence which was unbecoming of a Bank Officer and is, thus, charged under Regulation 3.1 of Central Bank of India Officer Employees (Conduct) Regulations, 1976 read with Regulation 24, which is punishable under Regulation 4 of Central Bank of India Officer Employees (Discipline & Appeal) Regulations, 1976. CHARGE No.3:
Mr.Ramakrishnan did not carried out (sic. carry out)/got inspected the stocks in the account of Indodan Industries and Foremost Industries (I) Limited in spite of the fact that party was not submitting its monthly stock statements and position of the account which was grossly out of order. Mr.N.Ramakrishnan did not take all possible steps to ensure and protect the interest of the Bank and did not discharge his duties with utmost integrity, honesty, devotion and diligence which was unbecoming of a Bank Officer and is, thus, charged under Regulation 3.1 of the Central Bank of India Officer Employees (Conduct) Regulations, 1976 read with Regulation 24 which is punishable under Regulation 4 of Central Bank of India Officer Employees (Discipline & Appeal) Regulations, 1976. CHARGE No.4:
Shri Ramakrishnan signed L/c No.44/48 dated 25.8.90 for Rs.41,18,852/40 favouring M/s.Manu steels, 118, Sakthi vihar, New Delhi-110034 mentioning the name of advising branch as Addison Building Branch, Madras instead of advising direct or through any other Branch in Delhi. When M/s.Manu Steels informed that the L/c.No.44/48 is a fraud. Shri Ramakrishnan did not make enquiries but wrote back to take up the matter with the party/negotiating banker. The matter was not pursued with negotiating bank on the basis of documentary evidence, B/o.Addison Building, Madras sought confirmation/authorities to honour reimbursement claim under the said L/c. Despite having knowledge of fraud, Shri Ramakrishnan gave instructions to honour the commitment. CHARGE No.5:
Shri N.Ramakrishnan unauthorisedly and without the knowledge of any other official and also without entering into bank's books/records signed letters to the various banks confirming acceptance of documents under the L/c. and confirming them the payment. CHARGE No.5(A):
Shri N.Ramakrishnan signed a letter that payment will be made on 20.2.1991 to M/s.Standard Bank without the knowledge of any officer from the Bank and without bringing on the Bank's record despite knowing the fact that the L/c being a fraud and have been denied by the beneficiary. He did not keep the copy of letter on Bank's record. CHARGE No.6:
All the revolving L/Cs. were unauthorisedly signed by Shri N.Ramakrishnan without having basic documents and having no limiting period mentioned for presenting the documents for negotiation. The last date of negotiation was mentioned on the basis of the information given by the party without ensuring the need and end-use of the desired material by the company. CHARGE No.7:
Shri N.Ramakrishnan unauthorisedly, without informing higher authorities transferred a limit of Rs.5 lacs to B/o.Addison Building, Madras for cheque discounting from the account of M/s.Indodan Industries Limited for utilization of discounting local and upcountry cheques drawn by M/s.Indodan Industries. This fact was not reported while communicating the position of account to Zonal Office. Thus, he concealed the facts from higher authorities.
2. On the above charges, enquiry was conducted between 6.5.1991 and 9.9.1995 and the Enquiry Officer submitted his report dated 28.11.1995 to the disciplinary authority founding charges 1,2,3 and 5(A) proved against the delinquent officer and further holding charges 4,5 and 7 not proved and charge No.6 as proved in part. After issuing a show-cause notice to the delinquent officer about the proposed punishment and receiving the reply of the delinquent officer, ultimately, the disciplinary authority, by the proceedings dated 31.1.1998, inflicted the punishment of dismissal from service on the delinquent officer as against which the appellant preferred an appeal before the second respondent/appellate authority. As the appellate authority also confirmed the punishment imposed by the disciplinary authority, the delinquent officer filed W.P.No.12362 of 1999 before this Court and since a learned single Judge of this Court has dismissed the said writ petition, by the order dated 3.6.2008, the delinquent officer has come forward to prefer this appeal.
3. Mr.N.R.Chandran, the learned senior counsel appearing for the delinquent officer, reiterating his arguments advanced before the learned single Judge, would argue that neither the enquiry officer, nor the disciplinary authority or the appellate authority assessed the facts of the case in their proper perspective and much injustice has been caused to the delinquent officer since the enquiry officer did not appreciate the evidence available on record. He has further argued that the crucial file of the year during which the delinquent was in the Janpath Branch, New Delhi was missing and though the delinquent officer made repeated enquiries to the Janpath Branch and also requested the Presenting Officer to call for the file which would reveal that he had written to the Zonal Office apprising them periodically of the opening of the L.Cs., the Manager of the Janpath Branch replied that the files of the Indane Group were not traceable. Thereafter, the delinquent officer requested the enquiry officer to call for the Zonal office file which would show the counter part of the letters addressed by the delinquent, but the Enquiry Officer took the stand that there is no need to show those files to the delinquent as it will only be a repetition and that the files of the Zonal Office cannot be shown as there may be some privilege documents.
4. The learned senior counsel would further argue that when the enquiry is being conducted with regard to such mattes, the management is bound to produce all the documents which would have established the innocence of the delinquent officer and the refusal and denial of this opportunity to the delinquent officer is against the principles of natural justice and amounts to denial of fair play. He would further argue that 'missing' of such an important file by the zonal office cannot be put against the delinquent officer and in fact, the benefit from out of the said missing has to be given only to the delinquent since there is a likelihood of making the file missing to mess-up things against the delinquent officer. In support of his arguments, the learned senior counsel for the appellant would rely on a judgment of a Division Bench of this Court in C.SAKTHIVEL vs. THE GOVERNMENT OF PUDUCHERRY AND OTHERS [2010-1-L.W. 140].
5. The learned senior counsel would further argue that the preponderance of probability should indicate the guilt of the delinquent and since in the case on hand, it has not been established, the punishment inflicted on the delinquent officer should be set aside. In support of his contentions, the learned senior counsel would rely on a Division Bench judgment of this Court in CANARA BANK BY ITS GENERAL MANAGER, BANGALORE vs. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, CHENNAI AND ANOTHER [(2008) 2 MLJ 414], to which one of us (Elipe Dharma Rao, J.) was a party. In the said judgment, it has been held as follows: “Even in a case of domestic enquiry, where the theory of preponderance of probability is applied, it is not as if guilt could be admitted based upon which service can be terminated. There should be enough material against the delinquent in proof of the charge levelled against him.”
6. The learned senior counsel for the appellant would further argue that in any case, the punishment of dismissal imposed on the delinquent employee is disproportionate. With regard to the doctrine of proportionality, the learned senior counsel would rely on the following judgments:
1.COIMBATORE DISTRICT CENTRAL COOPERATIVE BANK vs. COIMBATORE DISTRICT CENTRAL COOPERATIVE BANK EMPLOYEES ASSOCIATION AND ANOTEHR [(2007) 4 SCC 669]
2.MONI SHANKAR vs. UNION OF INDIA AND ANOTHER [(2008) 3 SCC 484] and
3.STATE OF UTTAR PRADESH AND OTHERS vs. RAM DARAS YADAV [(2010) 2 SCC 236].
7. In all these matters, the Honourable Apex Court has held that the doctrine of unreasonableness is giving way to doctrine of proportionality and the punishment should be proportionate to the proved guilt. The Honourable Apex Court, in all the above matters, considering the facts and circumstances of each case, has reduced the punishment imposed on the delinquent officers therein. Relying on the above judgments of the Honourable Apex Court, the learned senior counsel for the appellant would make an alternate argument that if this Court arrives at the conclusion that the appellant is guilty of the charges, he may be imposed with lesser punishment since the extreme punishment of dismissal is quite unwarranted in the facts and circumstances of the case.
8. On the contrary, the learned counsel appearing for the respondents/ Bank would argue that serious allegations of malpractice are levelled against the appellant, a senior officer of the Bank, and after affording all reasonable opportunities to him to defend his case and strictly following the principles of natural justice, an enquiry has been conducted and all the points urged by the delinquent officer have been rightly considered by the learned single Judge and dismissed the writ petition and there are no grounds or reasons for this Court to cause interference into the order passed by the learned single Judge. On such arguments, the learned counsel for the respondents would pray to dismiss the writ appeal.
9. As could be seen from the materials placed on record, the appellant was a Chartered Accountant and joined the services of the respondent Bank and rose up to the level of Chief Manager, one of the prestigious and responsible positions in the Bank.
10. The important defence of the appellant as against the proceedings of the department is that the records of Janpath Branch, where he served during the relevant period are missing and though the counter copies of the communications could be well available with the Zonal Office, the same were not furnished to him. The entire material placed on record and the documents marked by the delinquent officer before the enquiry officer would make it clear that the delinquent officer himself has filed some correspondence purported to have been found in the files of Janpath Branch and also the Zonal Office. Whatever be the source of collection/gathering of such material by the delinquent officer, it takes us to a conclusion that the delinquent officer is quite aware of the said correspondence and in fact was in possession of some of the correspondence also. Therefore, we are unable to say that any prejudice has been caused to him in either the Janpath Branch missing the files or the Zonal Office refusing to permit him to have a glimpse of the same. The material on record also does not indicate any foul play having been played by anybody, much less by or at the instance of the respondent Bank for the 'missing' of the files at Janpath Branch since the appellant has not placed any material before us to draw even an inference in this direction, except arguing that only to implicate him in the proceedings, the records were made missing by somebody. When such a sweeping allegation is being made on the part of the delinquent officer against the respondent Bank in general, at least he should have established some malice on the part of so-called 'black-sheep' in the administration of the respondent Bank and the need or necessity for anybody to put him in any turmoil. Therefore, we are unable to accept this argument advanced on the part of the appellant/delinquent officer.
11. With regard to the judgment in C.SAKTHIVEL vs. THE GOVERNMENT OF PUDUCHERRY AND OTHERS [2010-1-L.W. 140], relied upon by the learned senior counsel for the appellant, the appellant therein challenged the promotion given to respondents 5 to 7 therein as Loan Inspector Grade-I and promotion given to the 8th respondent as the Loan Inspector Grade-I and the further promotion given to the 5th respondent as the Development Officer. On the part of the Department, it has been contended that the files relating to the impugned promotions are missing from the office of the Board and knowing pretty well of this fact, the appellant has initiated the writ proceedings with a delay and hence, the writ proceedings are liable to be dismissed for laches. In these circumstances, a Division Bench of this Court, speaking through one of us (Elipe Dharma Rao, J.) has held as follows: “It is to be pointed out that the Audit party has pinpointed the Department for its lapses committed in promotions and regularisation of the employees and soon thereafter, the files connected thereto are found 'missing by the Department. This appears to be highly dramatic and a legal presumption would arise that only to cover up the mistakes committed on the part of the higher ups in the Department, which were taken for a ride by the Audit party, the files were made 'missing' by some black-sheep in the Department...”
12. The facts in the said case are quite different from that of the case in hand. In the case on hand, even though it has been maintained by the Branch office that the files are missing, as could be seen from the materials placed on record, the appellant himself was in possession of xerox copies of most of the secret communications of the Bank and he also produced them during the enquiry proceedings. Therefore, he cannot be allowed to say that the said files might have been made a 'miss' by or at the instance of the management, in order to deny reasonable opportunity to him. Therefore, the above judgment relied on by the learned senior counsel for the appellant will not, in any way, augment his case or cause.
13. During the enquiry proceedings, the appellant was permitted to have a defence representative of his choice and accordingly, he has availed the services of one Mr.J.K.Ramprasad, who was an erstwhile office bearer of the Central Bank of India Officers Association. To substantiate the charges, before the Enquiry Officer, the Management had examined three witnesses on their behalf and marked 63 documents as Exs.ME.1 to ME.63. But, the delinquent officer neither examined himself as a witness nor anybody else on his side, but has marked 83 documents on his side, which include, as has already been pointed out by us supra, some of the secret correspondences purported to have been found only in the files of the Janpath Branch and the zonal Office, the originals of which are reported to be missing in the Janpath Branch. In fact, in the protracted enquiry proceedings, we are unable to find any lack of opportunity for the delinquent officer to putforth his grievances and moreover, the delinquent officer does not seems to have raised his little finger before the enquiry officer about any lack of opportunity to him. Therefore, it indicates that the enquiry has been conducted in a fair manner, by affording all reasonable opportunities to the delinquent officer and nothing could be attributed to the enquiry officer.
14. With regard to the charge that the appellant has opened number of revolving letter of credits and committed various irregularities in the issuance of the same, it is seen that the circulars dated 18.6.1980 and 8.9.1980 issued by the respondent Bank specifically prohibited the opening of letters of credit with automatic reinstatement clause. But, the delinquent officer relies on a circular dated 22.10.1988 and says that this subsequent circular has permitted such opening of letters of credit with automatic reinstatement clause.
15. From the records available, we are able to see that the delinquent officer, vide Ex.M.49, himself has admitted the opening of letters of credit and also stated that he was under the impression that the opening of letters of credit was within the delegated powers of the Chief Manager and he came to know, on 8.8.1990, about the subtle difference between the opening of Letters of Credit on revolving basis with reinstatement clause and without reinstatement clause. This shows the negligence and dereliction of duty committed on the part of the delinquent officer. Even the subsequent circular dated 22.10.1988 relied on by the delinquent officer has only enhanced the power of the hierarchy of officers in regard to the upper limit which could be sanctioned by the Officer and there was no change as regards the opening of letter of credit with automatic reinstatement clause. Therefore, the delinquent cannot reap any benefit of this circular.
16. During the course of arguments, a letter dated 31.7.2007 addressed by the Assistant General Manager of the respondent Bank to M/s.Indodan Industries Limited, 72, Janpath, New Delhi-110001 has been placed before us. From this it is seen that because of the opening of letters of credit in an illegal and unauthorised manner by the delinquent officer, the Bank has sustained financial loss, further leading to initiation of various litigations before various legal fora. Ultimately, the proposal of the said company for compromise on payment of Rs.1480 lakhs, having been accepted by the respondent Bank, it was agreed to withdraw all the cases before various courts. Therefore, the contention raised on the part of the delinquent officer that there was no financial loss cannot be accepted. Had not there been any financial loss to the Bank, as has been contended on the part of the appellant, no necessity would have arisen for the Bank to initiate various legal proceedings against the said company, as could be seen from the above letter.
17. The delinquent officer being a senior officer and also a chartered accountant, is expected to discharge his duties with all diligence, devotion by maintaining utmost honesty and sincerity. The irregularities committed on the part of the delinquent officer having come to light, the Management has initiated the disciplinary proceedings and conducted them in due compliance of the principles of natural justice, as has been observed by us supra. The delay occurred in conducting the case could be attributed only to the retirement or transfer of enquiry officers and others and due to the procedural delays at various levels of the administration and no ill-will could be attributed to the Management for such delay. The material on record would also show the financial loss sustained by the Bank because of the irregularities committed by the delinquent officer. When the Bank, as the employer, lost faith in its employee/the delinquent officer and when the gravity of the proved charge warrants a capital punishment, we are unable to accept the contention raised on the part of the appellant that the punishment of dismissal imposed against the delinquent is so disproportionate to the alleged delinquency. Therefore, the judgments cited in this regard by the learned senior counsel for the appellant also will not come to the rescue of the appellant.
18. The learned single Judge has properly analysed the case in its proper perspective and has arrived at an irresistible conclusion of dismissing the claim of the appellant/delinquent officer, wherein we find no reason to cause our interference. For all the above reasons, this Writ Appeal fails and the same is dismissed. No costs.