D. INBAVALLI Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This writ petition is directed against the impugned show cause notice issued in terms of Clause 12 of the memorandum of settlement dated 10.4.2002, in and by which the disciplinary authority, proposing to impose the punishment of dismissal without notice on the petitioner, in terms of Clause 6(a) of the aforementioned settlement, for having been found guilty of several charges in the departmental enquiry, has directed the petitioner to appear at 10.30 AM on 22.3.2016 for a personal hearing in the matter.

(2.) Mr. N.G.R. Prasad, learned counsel for the petitioner, assailing the impugned notice, heavily submitted that when the petitioner is working as a Special Assistant with the first respondent bank, she was issued with a charge memo on 10.5.2012 alleging that on 4.10.2011, the petitioner misappropriated a part of the cash remitted by Mr. M. Venkatesan of M/s Ganapathy Fruits and the scrutiny of CCTV footage revealed that she had misappropriated some amount and that the CCTV footage for another three days when cash shortage was reported at her counter on 16.8.2011, 16.9.2011 and 3.10.2011 were scrutinised, it was found that she stealthily removed some pieces of notes, thus she acted in a manner prejudicial to the interest of the bank as detailed in the statement of allegations in Annexure-II. On receipt of the same, the petitioner submitted her detailed explanation. After rejecting the same, an enquiry officer was appointed and the petitioner also appeared before the enquiry officer on 11.7.2012 along with her representative by name Mr. V.S. Balasubramaniyan, who is the President of the State Bank Employees Union. But the first respondent bank refused him to represent the petitioner. Subsequently, the refusal of her request to engage a representative was challenged in Writ Petition No. 19528 of 2012. But this Court dismissed the same. As against that, Writ Appeal No. 280 of 2014 was filed, which was allowed by this Court by order dated 10.7.2014 with a direction to the first respondent herein to permit Mr. V.S. Balasubramaniyan to be the representative of the petitioner before the enquiry officer with a further direction to the petitioner to cooperate with the enquiry so as to enable the disciplinary authority to conclude the proceedings within a period of six months. Pursuant thereto, the enquiry officer conducted an enquiry and the petitioner also denied all the charges. In the departmental enquiry, the complainant Mr. Venkatesan was not at all examined. Moreover, nothing adverse was recorded in the CCTV footage. Besides, the CCTV footage was not admissible in evidence under section 65B of the Indian Evidence Act, because it was not certified. Further, the petitioner was able to prove in the departmental enquiry that the amount mentioned in the payment challan and the ledger have tallied and there was no shortage. Despite this, the bank has now issued the show cause notice on 15.3.2016 proposing to dismiss the petitioner from service without notice and further indicating to the petitioner that the period of suspension also will be treated only as suspension for all purposes. As the impugned proceeding is a pre-determined one, since the respondents have pre-concluded the issue, calling upon the petitioner to submit her explanation and also to appear for a personal hearing, will be of no use. However, the petitioner made a complaint on 23.2.2016 to the second respondent-National Commission for Scheduled Caste with regard to the harassment meted out to her and her husband and how she was denied even an opportunity of having a defence representative. The second respondent also had called for comments from the bank on her complaint. Without even giving a reply to the National Commission for Scheduled Castes and Scheduled Tribes, the respondent bank has hurriedly rushed to issue the impugned notice calling for the petitioner's comments on the proposed punishment. When the charge itself is vague and since the petitioner belongs to Scheduled Caste community, for having obtained an order from this Court for engaging a representative, fabricating certain documents against the petitioner, the bank is attempting to terminate her service.

(3.) Mr. Prasad also further submitted that the first respondent has no jurisdiction to proceed to issue the impugned show cause notice. Adding further he submitted that the petitioner's husband was also harassed by the bank while he served as a Chief Manager. While he was fighting with the issue, he also died on 6.12.2012 and his terminal benefits are yet to be settled by the respondent bank. In the meanwhile, the petitioner has been charge-sheeted. That shows that the first respondent is proceeding only against the petitioner for coming to the Court seeking remedy against the treatment meted out to her with a mala fide motive, as she happened to be from Scheduled Caste community. Finally, Mr. Prasad contended that in the disciplinary proceedings, the respondent bank has not even mentioned as to what is the alleged amount the petitioner had misappropriated, particularly when the challan amount tallied with the remittance and the cash on 4.10.2011, fabricating the complaint on 10.10.2011, the bank cannot charge the petitioner that she had removed rupees one thousand from the bundle of Rs. 100 section, which again cannot be their case, when admittedly Rs. 45 lakhs was credited to the account of the customer and no excess amount was found in her possession. Contending further, it was argued that on 2.11.2015, the presenting officer marked a letter received from Mr. Venkatesan dated 10.10.2011, noticing that Mr. Venkatesan's name was not shown in the list of witnesses, it was pointed out that Mr. Venkatesan should be produced as one of the witnesses if prosecution exhibit-3 should acquire the evidentiary value. Accepting the objection, Mr. Venkatesan's name was included. Subsequently, the presenting officer could not produce him. Moreover, the presenting officer has not said anything apologetically about the non-production of the witness Venkatesan. That shows that the enquiry officer has sided with the prosecution. Besides, when the CD's were presented by the presenting officer, they were never played inside the enquiry room. Three sets of 4 CD's were brought, of which one set was given to the departmental representative and another to the enquiry officer. While seeing the CD, it is not known how the enquiry officer has left away Venkatesan putting money on his pocket with a broad smile on his face. Moreover, the enquiry officer has also closed his eyes to the petitioner's gesture to Mr. Venkatesan to go to the branch manager and lodge his complaint. In this context, he referred to the judgment of the Apex Court in the case of Hardwari Lal v. State of U.P. and others (1999) 8 SCC 582 for the proposition that non-examination of the complainant would amount to violation of the principles of natural justice. Again referring to another judgment of the Apex Court in Siemens Limited v. State of Maharashtra and others (2006) 12 SCC 33 for the proposition that the writ petition filed under Article 226 is maintainable questioning the show cause notice issued with premeditation. Mr. Prasad argued that a mere perusal of the impugned notice clearly shows that the first respondent has already formed an opinion regarding the imposition of major punishment of dismissal from service on the petitioner. It is evident that the first respondent had clearly made up his mind to dismiss the petitioner, therefore, the petitioner's appearance as directed by him on 22.3.2016 would be of no use and it will be a mere eye-wash. Hence, if the impugned proceeding indicating clearly that the petitioner would be dismissed from service, is not stayed, the petitioner would be dismissed from service.