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SUPREME COURT OF INDIA
J. CHELAMESWAR, S.A. BOBDE, JJ.
G.M. (OPERATIONS) S.B.I & ANR. – APPELLANTS
VERSUS
R. PERIYASAMY – RESPONDENTS
CIVIL APPEAL No.10942 OF 2014 [Arising out of SLP (Civil) No. 4648 of 2008]
Decided On : 10-12-2014
AIR 1963 SC 1723; (2011) 4 SCC 584 – Relied upon
(b) Service law – Judicial review – Constitution of India – Article 226 – Single Judge weighing adequacy of evidence during enquiry – Not open to him – It was only open for High Court to see whether the order was based on no evidence or perverse. (Para 9)
(c) Service law – Departmental enquiry – Standard of proof – High Court observing that ‘concept of preponderance of probabilities is alien to domestic enquiries’ – Against well settled legal proposition and Supreme Court rulings – Not tenable. (Para 10)
(1972) 4 SCC 618; (2006) 7 SCC 212; (2013) 2 SCC 740; (1998) 4 SCC 310 – Relied upon
(d) Service law – Departmental proceeding – Delinquent charged with doubtful integrity – Acquitted by Criminal Court for lack of evidence on witnesses turning hostile – Unless acquittal is honourable, i.e., on merits, departmental proceeding can proceed. (Para 10)
(2013) 7 SCC 685; AIR 1964 SC 787 – Relied upon
(e) Administrative law – Onus of proof – Rests upon the party alleging the invalidity of an order – Maxim omnia praesumuntur rite esse acta, 'all things are presumed to be done in due form’. (Para 10)
(1947) AC 109; (1948) 1 KB 223; (1959) Ch. 543 affirmed by (1961) AC 636; (1943) 2 All ER 546 – Relied upon
(f) Constitution of India – Article 226 – Respondent producing a letter for the first time before the Division Bench purportedly written by him demanding certain documents for his defence and alleging non-supply of the same – Appellant denying receipt of such letter – Onus shifted on respondent to establish the fact which he did not discharge – Yet Division Bench getting swayed and deciding in his favour – Not permissible. (Para 11)
(1958) 2 QB 316 at 331; (1978) 1 WLR 1 – Relied upon
(g) Constitution of India – Article 226 – High Court setting aside order of dismissal on ground of lack of clinching evidence in support of charge of shortage of money – In other words, High Court decided on basis of inadequacy of evidence – Interference with finding of fact by enquiring officer – Not permissible. (Para 12)
(h) Constitution of India – Article 226 – High Court interfering with order of dismissal because it deprived the delinquent of his livelihood – Wholly untenable – Transgression of jurisdiction cannot be justified on the ground of consequences. (Para 12)
(2007) 1 SCC 437 – Distinguished
Facts of the case:
The respondent - Periyasamy, a Permanent Cash Officer in State Bank of India.
In a departmental enquiry, he was charged with being accountable for a shortage detected in the currency chest in his joint custody along with one Ganesan. By the second charge, he was charged with not adhering to the laid down instructions regarding currency chest transactions and for committing lapses in the maintenance of the currency chest register. By the third charge, he was charged with excessive outside borrowings in violation of Rule 41(i) of the State Bank of India (Supervising Staff) Service Rules.
After enquiry the respondent was dismissed from service.
The High Court allowed his appeal against dismissal.
Finding of the Court:
Views taken by High Court are not tenable.
Result: Appeal disposed as allowed.
JUDGMENT
S. A. BOBDE, J.
Leave granted.
2. The appellant, General Manager of the State Bank of India has preferred this appeal against the Judgment and Final Order dated 30.08.2007 passed by the High Court of Judicature at Madras in Writ Appeal No. of 2375 of 1999. By the impugned Judgment the High Court dismissed the appellant's Writ Appeal and confirmed the finding and Judgment of the learned Single Judge by which the respondent's Writ Petition was allowed and the orders dismissing him from service were set aside.
3. The respondent - Periyasamy, was serving as a Permanent Cash Officer at the Dharmapuri Branch of the State Bank of India in 1986. In a departmental enquiry, he was charged with being accountable for a shortage detected in the currency chest in his joint custody along with one Ganesan. By the second charge, he was charged with not adhering to the laid down instructions regarding currency chest transactions and for committing lapses in the maintenance of the currency chest register. By the third charge, he was charged with excessive outside borrowings in violation of Rule 41(i) of the State Bank of India (Supervising Staff) Service Rules.
4. An enquiry was duly conducted. The charged officer, the respondent, was given an opportunity to defend himself and an Inquiry Report dated 03.11.1986 was submitted to the disciplinary authority. The disciplinary authority considered the entire report and after discussing the same came to the conclusion that there was a preponderance of the probability that the respondent had been surreptitiously removing currency notes from the chest over a period of time, the shortage being Rs. 1,25,000/-. The disciplinary authority also took note of the fact that he was lending money to others, even without a pro-note indicating that he had large amounts of cash. The disciplinary authority, therefore, recommended the dismissal of the respondent from the service of the Bank in terms of Rule 49(h) of the State Bank of India (Supervising Staff) Rules by an order dated 27th July, 1989. Thereafter, the Chief General Manager considered the Inquiry Report and the recommendation of the disciplinary authority and concurred with the views of the disciplinary authority. Against the dismissal, the respondent preferred an appeal under the Service Rules of the Bank. However, the appeal was also turned down by the order dated 14.05.1990. Against the said orders, the respondent preferred a Writ Petition before the Madras High Court. As observed earlier, the learned Single Judge allowed the petition and the Division Bench dismissed the appeal against the petition. Hence, the Bank has preferred this appeal.
5. While the respondent was working as a Cash Officer, at the Dharmapuri Branch with Ganesan, the branch-accountant, as a joint custodian, the Branch inspection took place between 20.02.1986 to 05.04.1986. The respondent had been working as the Cash Officer from 16.11.1985. Certain irregularities were found in the inspection. As a result of the irregularities, instructions were given to follow the dual locking system for the storage bins where cash was stored and for the dividing doors with effect from 05.04.1986. On that very night, the respondent met with an accident. The strong room keys which were supposed to be in the physical possession of the respondent were found in his Cupboard in the Branch. From 07.04.1986 to 09.04.1986, one Swaminathan officiated as the Cash Officer. From 10.04.1986 to 11.04.1986, one N Krishnan officiated as the Cash Officer. From 12.04.1986 to 17.04.1986, again, Shri Swaminathan officiated as the Cash Officer. According to the appellant, there was no transfer of notes from the operative bins of the bank to the storage bins and there was no cash withdrawal from the storage bins between 05.04.1986 to 14.04.1986. On 15.4.1986, a cash shortage of Rs.40,000/- was noticed by the officiating Cash Officer. Therefore, the verification of the entire currency chest was conducted, which show
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