High Court
Case Details
WP(C) 5138/2004 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) This writ petition is directed against the order dated 20/03/2002 (Annex ure-IX) by which the petitioner was imposed with the penalty of compulsory retir ement from service pursuant to a departmental proceeding. The departmental appea l preferred by him was also dismissed by Annexure-XI order dated 17/03/2003, whi ch is also under challenge in this writ petition.
Legal Reasoning
para 10 of the counter affidavit, the letter of confession of the petitioner ha s been referred to. As regards the production of letters by the particular custo mers showing return of the amounts by the petitioner, it has been stated in the counter affidavit that the said fact would go to prove the charges against the p etitioner. There is no dispute that so far as the charge No. 4 is concerned, the amounts in question were returned by the petitioner to the particular customer after several years. 11. While it is true that in the enquiry report, no detail discussions have been made but there is reference to the exhibited documents i.e. P-4, P-9, P-10 in respect of Article No. 1 and P-2, P-4, P-8, P-11, P-13, P-14 and D-4 in respe ct of the charge No.4. I have consulted the said documents as available in the e nquiry proceeding file. Document P-4 is the counter foil showing deposit of Rs. 10,000/- as indicated in charge No.1. Ext.P-9 is the letter written by the custo mer Shri Hiren Kr. Saharia which is dated 12.5.1997 addressed to the Branch Mana ger of the bank. By the said letter, a complaint was lodged against the petition er stating that he had gone to the bank to deposit Rs. 10,000/- in his account. However, the petitioner took the money from him assuring depositing the same in his account. Accordingly, the amount was handed over to him and thereafter the p etitioner handed over the counterfoil showing deposit of the amount. Later on, h e also made necessary entries in the pass-book. However, the complaint was withd rawn by his letter dated 13.5.97 as the amount was returned to the customer. Doc ument P-10 is the complaint lodged by the customer to the same effect. 12. From the above, what is seen is that the petitioner took the amount from the complainant assuring him depositing the same in his account and immediately thereafter with due seal and signature, the counterfoil was handed over to him. However, the fact of the matter is that the amount was never deposited. It is a nother thing that the amount was returned to the customer when he lodged the com plaint but it is altogether different thing as to how the action of the petition er is to be tested in the touchstone of the confidence reposted on him by the ba nk. 13. As regards the Article No.4, Ext. P-2 is the pass-book pertaining to the complainant Dr. B. K. Daimari. Ext P-4 has already been referred to above. Ext P-8 is the letter dated 10/01/2000 written by said Shri Daimari to the Branch Ma nager stating therein that since had received back the money as indicated in Art icle No.4, he would not have any claim against the bank. Document P-1 is the vit al document, by which the petitioner confessed that the amount mentioned in Arti cle No.4 although had been received but was not deposited. By the said letter da ted 20/09/97, the petitioner assured the Branch Manager that he would return bac k the money within 15 days failing which he would be liable in law. 14. Document P-13 is the complaint lodged by Dr. B.K. Daimari, stating there in that although he had deposited the amounts mentioned in Charge No.4 but such deposit was not shown in the pass book. It was stated in the letter that the amo unts were handed over to the petitioner. Document P-18 is another complaint date d 3.10.2007 lodged by Dr. Daimari naming the petitioner. In the said complaint a lso non-deposit of the amounts in his account by the petitioner was alleged. Doc ument P-15 is a report of the Branch Manager furnished to the higher authority a bout the aforesaid incident. 15. Referring to the above documents, the Enquiry Officer found the petition er guilty of the charge No.1 and 4. Even in the counter affidavit filed on 29.6. 2006, the respondents have annexed the documents marked as Annexure-A, B, C and D. Annexure-A is the letter by which Shri Hiren Kr. Saharia addressed the Branch that he received the amount in question. Annexure-B is the document pertaining to the personal hearing that was given to the petitioner in respect of the propo sed penalty. The submission of the petitioner was that he would not repeat the w rong done in future and that he be imposed with a lesser penalty. 16. Annexure-C and D are the documents already referred to above by which th e petitioner undertook to deposit the amount shown in article of Charge No. 4 wi thin 15 days and the letter of the depositor i.e. Dr. Daimari dtd. 10.1.2007 int imating the Branch Manager that the amount was returned to him. It would be pert inent to mention here that the incident pertaining to Article No. 4 was of 8.8.9 5 and 6.6.96 and the amount involved was returned to the depositor by the petiti oner later on. 17. Needless to say that the job involved in respect of an employee of a fin ancial institution like Bank is that of confidence. It is an admitted position t hat the amounts involved in Article No. 1 and 4 were not deposited by the petiti oner although were shown deposited. Even the counter foil showing deposit was ha nded over to the depositor and the pass book was also updated. However, when the complaint was lodged the amount in respect of Article No.1 was returned back. S o far as the charge No.4 is concerned, both the amounts were returned to the cus tomer after a considerable length of time. This will go to show that the petitio ner had taken the amount for the purpose of deposit against the accounts of the customers, but was not deposited. This conduct on the part of the petitioner led to initiation of departmental proceeding in which he clearly admitted the charg es levelled against him. 18. Above being the position, if the Disciplinary Authority decided to enfor ce the penalty of compulsory retirement upon the petitioner, no fault can be att ributed to it. When the matter was last taken up on 6.5.2013, Mr. Sarma, learned counsel representing the respondent bank was asked to obtain instruction as to whether pursuant to the compulsory retirement imposed on the petitioner, he has been paid his dues. Upon instruction, he submits that the petitioner is entitle d to get retirement gratuity and his PF amounts. However, he submits that the pe titioner having not approached the bank by submitting necessary information, the amount could not be released.
Arguments
I have heard Mr. S. Bharali, learned counsel for the petitioner. I have 2. also heard Mr. S.S. Sarma, learned senior counsel assisted by Ms. F. Khan, learn ed counsel representing the respondent Bank. I have also gone through the entire materials on record including the disciplinary proceeding file produced by Mr. Sarma. 3. The petitioner while was serving as Cashier-cum-Clerk in the respondent bank was placed under suspension by order dated 08/11/1997 on the ground of comm itting certain serious irregularities while was working as Cashier-cum-Clerk in Mangaldoi Branch of the Bank. The order of suspension was followed by the charge sheet dated 01/09/1999 in which the following charges were levelled. On 12.5.97, you accepted unauthorisedly an amount of Rs. 10,000/- in cas (cid:28)(i) h from Shri Hiren Kr. Saharia, meant for depositing in his Saving Bank Account N o. 39/79. You returned to the account-holder, the counterfoil of the relative pa y-in-slip initialed by you as a token of having received the amount. The amount was not deposited by you in the said Savings Bank account of Shri Hiren Kr. Saha ria. The amount was misappropriated by you. (ii) On 03-04-97, you accepted unauthorisedly an amount of Rs. 10,000/- in ca sh from Smt. Mikumoni Sarma, daughter of Shri Mohan Chandra Sarma for the purpos e of depositing the amount in the Savings Bank account No. 11/86 of Shri Mohan C handra Sarma. You did not credit the amount in the said Savings Bank account of Shri Mohan Chandra Sarma, although the amount was entered in the relative pass-b ook of the account holder under your initials. The amount was misappropriated by you. Also a superfluous debit entry for Rs. 5,300/- was made by you in the pass -book of the said S.B. account on 11.4.97 under your initials. (iii) From the Savings Bank account No. 45/93 of Smt. Rina Devi, two amounts o f Rs. 7,000/- and Rs. 5,000/- were withdrawn by means of withdrawal forms on 25. 10.94 and 01.11.94 respectively. The account holder denies having withdrawn the said amounts. It has been found that the account holder’s signatures on the reve rse side of both the withdrawals were verified by you although the signatures of Smt. Rina Devi on the said withdrawals differ with the recorded specimen signat ure of the account holder. You were instrumental in the fraudulent withdrawals o f the said sums. (iv) You accepted unauthorisedly amounts in cash for Rs. 4,000/- and Rs. 18,2 00/- on 08.08.95 and 06.06.96 respectively from Dr. B.K. Daimari, for the purpos e of depositing in his Savings Bank account No. SIB/81/2145. Both the amounts we re not credited to the said Savings Bank account of Dr. Daimari although the cou nterfoils of the relative pay-in-slips were returned by you to the account holde r duly signed by you as a token of receipt of the amount. Also superfluous credi t entries for the amounts were made by you in the relative pass-book of the acco unt holder. The amounts were misappropriated by you. (cid:29) Upon levelling the aforesaid charges against the petitioner, it was alle 4. ged that the act on the part of the petitioner referred to in the charges violat ive of the laid down instructions of the Bank and that the petitioner had acted in a manner prejudicial to the interest of the bank and also that such conduct h ad tarnished the image of the bank before the public. 5. The petitioner responded to the charge sheet and submitted his reply den ying the same. As regards the charge No. 1 and 4, it was contended that the ques tion of misappropriation of the amount involved did not arise as the amounts wer e taken back by the customers. 6. The Disciplinary Authority of the bank being not satisfied with the repl y furnished by the petitioner decided to hold an enquiry in which the petitioner duly participated. On conclusion of the enquiry, the Enquiry Officer submitted his report on 14/11/2000 holding the petitioner guilty of charge No. 1 and 4 bey ond doubt. The petitioner was given an opportunity to make representation agains t the enquiry report which he submitted on 28/02/2001. Thereafter, upon proposin g the penalty of compulsory retirement, from service, he was imposed with the sa me vide the impugned order dated 20/03/2002. Being aggrieved, he preferred an ap peal to the appellate authority but the same was also dismissed by order dated 1 7/03/2003. 7. Referring to the report furnished by the Enquiry Officer, it is the subm ission of Mr. Bharali, learned counsel for the petitioner that the report being cryptic, on the basis of such a report, the disciplinary authority could not hav e imposed the extreme penalty of compulsory retirement. He further submits that even the orders passed by the disciplinary authority and the appellate authority being without any reason, they are not sustainable in law and thus liable to be interfered with. 8. Countering the above argument, Mr. S.S. Sarma, learned senior counsel re presenting the respondent Bank submits that the procedure to be followed in a de partmental proceeding being not akin to the procedure to be followed in a crimin al proceeding, the petitioner cannot challenge the disciplinary proceeding on te chnical please without showing any prejudice caused to him in conducting the enq uiry proceeding. He further submits that the facts alleged in the charges having been admitted by the petitioner that by itself was sufficient to hold the petit ioner guilty of the charges. Referring to the disciplinary proceeding file, he s ubmits that the documents exhibited in the enquiry would go to show that the pet itioner himself had admitted the charges levelled against him. 9. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties. As to what are the charges levelled against the pe titioner has been noted above. All the charges pertain to non-deposit of amounts handed over to the petitioner by the customers. However, in the enquiry while t he charge No. 1 and 4 stood established, other two charges could not be establis hed. It is the own case of the petitioner that the amounts indicated in the char ge No. 1 and 4 had been returned to the customers by him, but what is required t o be considered is as to whether such return of the amount could absolve the pet itioner from the charges levelled against him. 10. In the counter affidavit filed by the respondents, it has been stated th at during the course of the enquiry, the petitioner had admitted the charges. In
Decision
In view of the above, the writ petition stands dismissed upholding the o 19. rder of the penalty. However, it is hereby directed that the respondent bank sha ll release the admissible amount to the petitioner upon approach being made by t he petitioner and observing necessary formalities. 20. There shall be no order as to costs.