T D Makhija v. Union Bank of India

12. The Petitioner, thereafter, preferred an Appeal before the Appellate Authority and the Appellate Authority again with due application of mind had dismissed the Appeal by an order dated 28.12.2001.

13. The Petitioner, thereafter, preferred a review petition, which was also dismissed by the Competent Authority by an order dated 21.05.2005, and, thereafter, the Petitioner came up before this Court by filing a Writ Petition.

14. The Learned Single Judge after taking into account all the grounds raised by the Petitioner and the law relating to interference of Courts in departmental proceedings has dismissed the Writ Petition. Paragraphs 36 to 44 of the order passed by the Learned Single Judge read as under.

15. The Petitioner not being satisfied with the order passed by the Learned Single Judge preferred a review petition and the Learned Single Judge has dismissed the same by an order dated 09.12.2022 holding that there was no error apparent on the face of record. The review petition was dismissed taking into account the judgments delivered in Aribam Tuleshwar Sharma Vs. Aibam Pishak Sharma & Ors.,(1979) 4 SCC 389, Parsion Devi and others Vs. Sumitri Devi & Ors., (1997) 8 SCC 715, & Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC

526.

16. Learned Counsel for the Petitioner before this Court has vehemently argued that the punishment awarded in the matter is disproportionate to the guilt of the delinquent, and, therefore, the order of the Disciplinary Authority to the extent dismissal has been awarded deserves to be interfered with.

17. So far as the first ground as raised by the Petitioner is concerned, the present case relates to embezzlement by a Banker and embezzlement by a Digitaaly Banker who is custodian of public money is the most serious offence in Banking Sector and has to be dealt with iron hands, and, therefore, to the extent the plea of interference in quantum of punishment is concerned, this Court does not find any reason to interfere in the matter. [see: United Commercial Bank and Others Vs. P C. Kakkar, (2003) 4 SCC 364]

18. The Learned Counsel has also argued before this Court that it was one Sohanlal who was responsible in committing the fraud and the Petitioner has been made a scapegoat.

19. It has also been argued that FIR was lodged against the present Appellant, Sohanlal and Umesh Kumar Garg, and Sohanlal has returned the amount misappropriated by him, and, therefore, action against the Petitioner stands vitiated.

20. In the considered opinion of this Court, merely because some other person was also involved in the matter has deposited the embezzled amount, as alleged by the Petitioner, the question of exonerating the Petitioner does not arise.

21. The Petitioner was one of the key players in perpetrating a fraud of Rs. 23.38 Lakhs by manipulating system and the laid down procedure. The fraudulent transactions were authorized and verified by the Petitioner himself.

22. The aforesaid fact has been proved in the departmental enquiry, and, therefore, once the evidence on record has established the guilt of the Digitaaly Petitioner, the question of interference with the departmental enquiry in the peculiar facts and circumstances does not arise.

23. It has also been vehemently argued before this Court that the Petitioner does not have any past track record of committing misconduct. There was no loss to the Bank and the entire money was deposited by Sohanlal, and, therefore, the enquiry proceedings be set-aside.

24. This Court has carefully gone through the entire record and has also taken into account the grounds raised by Learned Counsel for the Petitioner. The facts of the case further reveal that one Umesh Kumar Garg was also inflicted with the punishment of compulsory retirement and based upon the evidence on record the guilt of the Petitioner was established in the departmental enquiry and, therefore, it is not a case of perverse findings by the Enquiry Officer.

25. In the considered opinion of this Court that the appreciation of evidence is not permissible, however, it has been done by the Learned Single Judge as the Appellant has argued a ground of perverse findings by the Enquiry Officer. The evidence on record establishes the guilt of the Petitioner and the charges have been proved with documentary evidence as well as oral evidence adduced in the departmental enquiry. Merely, some other person was inflicted with a lesser punishment; it does not mean that the Petitioner who was one of the key players in the fraud which resulted in loss to the Bank can be given a clean chit. Digitaaly

26. Learned Counsel for the Petitioner has vehemently argued before this Court that there has been violation of Rule 6 of the Union Bank of India Officer Employees’ (Discipline And Appeal) Regulations, 1976.

27. The aforesaid statutory provision of law provides for appointment of enquiry officer and appointment of presenting officer.

28. The Enquiry Officer and the Presenting Officer were public servants, and there has been no violation of Rule 6 as argued by the Learned Counsel for the Petitioner.

29. The present case is an open and shut case, wherein, the Petitioner has been held guilty based upon the evidence on record. The Petitioner is trying to shift his guilt upon other Officers and the same does not help the Petitioner at all.

30. The findings of the Enquiry Officer which are on record are reproduced as under: FINDINGS: All the allegations taken up in the inquiry stand proved against Shri T D Makhija documentary evidence and duly corroborated the deposition of Management Witnesses. The Officials of Regional Computer Cell, Delhi submitted a detailed report dated 14.08.99 (M EX 53). They traced the modus operandi and also arrived at the total fraud of Rs. 23.38 lacs involving Shri Sohan Lal and Shri Makhija. They concluded that fraudulent transactions were authorized and knowingly with fraudulent intentions. They did not include Shri Harbans Rai in the said fraud. (no evidence of The Chief Digitaaly Manager, SSI Okhla branch lodged an FIR dated 02.12.97 (M.EX 51) against Shri Sohan Lal and Shri Makhija. It is established in the inquiry proceedings that Shri Sohan Lal, Computer Operator and Shri T.D. Makhija are the key players in the fraud. They manipulated the systems and laid down Procedures for their personal gains by misutilising their positions in the bank. They had also exploited the mutual trust and confidence reposed by their colleagues.

1. Being a System Administrator, Shri Makhija was not entrusted with duties of Bills Department He purchased the cheques drawn on Local branch without the approval of Competent Authority.

2. He had signed pay-in slips, Local Branch Debit Advices, credit advices related to for which he was not competent fraud.

3. He had signed them without ascertaining the genuineness of transactions:

4. He had failed to ensure that Local Branch cheques are sent in clearing and not by way of sending Local Branch Debit Advices.

5. He failed to ensure whether the Competent Authority had permitted for purchase of cheques drawn on SDA Branch that too involving staff / staff relatives.

6. He did not ascertain from SDA Branch whether sufficient funds are available to cover the cheques purchased. He was hand in glove with Shri Sohanal Lal in manipulation of Local Branch A/C to the extent of 8.00 lacs over a period of time

7. He in collusion with Shri Sohan Lal had cancelled withdrawal forms/cheques for huge amounts in the SB A/C of Shri Sohan Lal. He had perpetrated the fraud for a long time and to the extent of Rs.23.38 lacs. Digitaaly

8. He had not ensured whether the Local Branch Debit Advices sent to SDA Branch was responded in time or not

9. He had allowed credit of clearing cheque for Rs.5.00 lacs on the same day without waiting to know the fate of the instrument sent in clearing

10. Shri Makhija debited inward return cheque for Rs 5.00 lacs in suspense A/C DNR instead of party a/ c 11. and manipulated this head-to-hide-out the misdeeds.

11. He had cancelled the cheques in M/S Unik Cargo Movers (P) Ltd when one director instead of two directors signs the cheques.

12. He failed to know on what basis and purpose Shri Sohan Lal was withdrawing Rs.55,000.00 in the CD A/C of M/S Unik Cargo Movers (P) against the effects of clearing cheque

13. Shri Makhija abused the position as System Administrator by utilising the pass word/TBA prompt to delete the debit entries in the Current A/Cs after the day end-so the balances would remain unaffected

14. He has extended undue favours to M/S Jorgy international and their group accounts. As on 6.08.99 he allowed an excess of Rs.3,14,694.62 in the account of M/S Computer Components (I) Pvt Ltd, a group account of M/S Jorgy International. It was found that Shri Makhija has debited the account for retirement of import documents (M.EX

15. He was having some signed loose cheques in M/S Jorgy International and group accounts Which he had misutilised to withdrew cash from these accounts and to manipulate the Computer System to delete the unauthorised transactions. He had withdrew cash in Digitaaly fraudulent manner in the A/c of M/S Jorgy International to the tune of Rs 12.10 lacs (M EX 48/5)

16. He had tampered with the evidence, he removed a cash payment cheque dated 13.11.98 for Rs.60,000.00 in CD A/C No.20010 and torn cheque piece was found in his possession (M.EX 48/3)

17. He did not generate daily statements to hide his misdeeds. The aforesaid acts of omission and commission on the part of Shri Makhija is more than sufficient to prove the charges that he had failed to discharge is duties with devotion and diligence, honesty and integrity and failed to take all steps to ensure and protect the interest of the Bank. His involvement in fraudulent transactions with malafide intentions and for pecuniary gains as referred above prove the charge of unbecoming of bank officer and not acted in his best judgement in the performance of official duties CONCLUSION The following charges taken up in the inquiring proceedings stands established against Shri Makhija by documentary evidence, which is duly corroborated by the deposition of Management Witnesses

01. Failure to perform his duties with utmost devotion, Diligence, honesty and integrity

02. Failure to the all possible steps to ensure and Protect interest of the Bank

03. Doing Acts unbecoming of a bank Officer

04. He has not acted in his best judgement in performance of his duties. The following facts also emerged in the inquiry proceedings: Digitaaly

1. The Services record of Shri Makhija prior to the present incidence was unblemished

2. The Bank has not suffered any monetary loss as Shri Sohan Lal/remitted the amount involved in fraud The inquiry report is placed before the Disciplinary Authority for kind perusal and action”

31. The findings of the Enquiry Officer establish the acts of omissions and commissions on behalf of the Petitioner which are based upon documentary as well as oral evidence and it is nobody’s case that principle of natural justice and fairplay was violated at any point of time.

32. The Hon’ble Supreme Court in the case of R. Mahalingam v. T.N. Public Service Commission, (2013) 14 SCC 379, has provided guidance on the scope of judicial interference in matters challenging disciplinary action. The Hon’ble Supreme Court in the aforesaid case, in paragraph 11 has held as under: -

33. The Hon’ble Supreme Court in the case of Apparel Export Promotion Council Vs. A.K. Chopra, (1999) 1 SCC 759, in paragraphs 16 & 17 has held as under:

17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority.”

34. The Hon’ble Supreme Court has held that in exercise of review jurisdiction, normally, there should be no interference with the factual findings in a departmental enquiry unless the Court finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/ or legally untenable. Digitaaly

35. The Hon’ble Supreme Court in the case of State of A.P. Vs. S. Sree Rama Rao, (1964) 3 SCR 25, in paragraph 7 has held as under: “7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition I … under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on Digitaaly which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.”

36. In the aforesaid case, the scope of judicial scrutiny has been looked into by the Hon’ble Supreme Court in exercise of writ jurisdiction under Article 226 of the Constitution of India.

37. The Hon’ble Supreme Court in the case of Union of India Vs. P. Gunasekaran, (2015) 2 SCC 610, in paragraphs 12 & 13 has held as under:

38. The Hon’ble Supreme Court in the case of State of Karnataka Vs. N. Gangaraj, (2020) 3 SCC 423, has taken into account the earlier judgments delivered on the subject and has reiterated that the scope of interference in departmental enquiry is quite limited. Interference in disciplinary proceedings can be done in case there is violation of principles of natural Digitaaly justice and fairplay or if the findings arrived at are based on no evidence/ perverse findings.

39. In light of the aforesaid judgments and in absence of any procedural irregularity or violation of principles of natural justice and fair play, this Court does not find any reason to interfere with the order passed by the Disciplinary Authority, the Appellate Authority as well as the order passed by the Learned Single Judge.

40. The Writ Petition stands dismissed. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE (SUBRAMONIUM PRASAD)