High Court
Case Details
WP(C) 5411/2004 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY The petitioner, who was the Head Cashier in Arunachal Branch of United B ank of India, by the present petition has challenged the order dated 29.03.2004 passed by the Regional Manager, who is the Disciplinary Authority, imposing puni shment of dismissal from service, based on the finding recorded by the Enquiry O fficer in the disciplinary proceeding initiated against the petitioner. The facts relevant for the purpose of the present writ petition may be n oticed as under:- While the petitioner was serving as Head Cashier in the aforesaid branch , he was placed under suspension vide order dated 13.05.2003 in contemplation of the drawal of the departmental proceeding against him. An F.I.R. was also lodge d on 12.05.2003 by the Deputy Regional Manager with the Officer-in-Charge of Sil char Police Station alleging misappropriation of bank’s fund by the petitioner. The departmental proceeding against the petitioner, thereafter, was initiated by issuing the charge memo dated 04.08.2003 alleging gross misconduct in terms of Clause 5(J) of Memorandum of Settlement dated 10.04.2002, based on the following allegations:- (cid:28)You, with an ulterior motive, depleted the aggregate day’s cash receipt figure in the Cash Receipt Register of the Branch on 8(eight) occasions, as shown in An nexure-B to this letter and thereby embezzled cash aggregating Rs.4,41,500/- for your personal gains and purposes. Moreover, to suppress your misdeeds, you had adjusted such fraudulent acts of depletion of aggregate cash receipt figure in t he Cash Receipt Register of Arunachal Branch by making unauthorized corrections and/or over-writings in the Subsidiary Cash Book of Saving Bank Account or Rough Cash Book of the said Branch to affect the General Ledger finally. You, with an intention to defraud the Bank, also inserted fictitious entries on 4(four) occasions in the Cash Payment Register of Arunachal Branch, as shown in Annexure-C to this letter, thereby irregularly inflating the aggregate of cash p ayment figures embezzled cash aggregating Rs.2,17,000/- for your personal gains and purposes. In all the above cases neither the concerned SB Account was debited in the ledge r nor the payment was recorded in concerned Token Register as per rules in force , nor there is any cheque/withdrawal slip supporting the said payments. Your above fraudulent activities have exposed the Bank to a financial loss amoun ting to Rs.30,14,000/- (Rupees thirty lac fourteen thousand only) as on 25.06.20 03 plus up to date interest thereon. (cid:29) The petitioner on the same day was also served with the details of the a mount alleged to be misappropriated by the petitioner as well as 3(three) saving s bank account numbers, apart from the list of documents, on which the Managemen t has placed reliance in support of the charges. Vide communication dated 14.08. 2003 the petitioner was informed about the typing mistakes occurred in different paragraphs of the charge memo and also the account number in Annexure-C to the charge memo, intimating that the Savings Bank Account No.3073 is to be read as S avings Bank Account No.4073. The petitioner on receipt of the same submitted his reply on 25.09.2003 denying the charges levelled against him. The respondent ba nk, thereafter, vide communications dated 13.11.2003 and 17.11.2003 informed the petitioner about the typographical mistakes occurred in mentioning the account numbers in the charge memo. Since the petitioner has denied the charges levelled against him, Enquiry Officer was appointed to enquire into the allegation. The Enquiry Officer, thereafter, on completion of the enquiry conducted against the petitioner, submitted his report on 05.01.2004, which was sent to the petitioner on 06.02.2004 asking him to make representation against the finding recorded by the Enquiry Officer in his report. Consequently the petitioner on 22.02.2004 su bmitted his views against the finding recorded by the Enquiry Officer. The Disci plinary Authority on 13.03.2004 has given another opportunity to the petitioner to make representation against the proposed punishment of dismissal from service . The petitioner submitted his representation against the proposed punishment on 25.03.2004. The Disciplinary Authority upon consideration of the same as well a s the finding recorded by the Enquiry Officer in the enquiry report, apart from the materials available in the enquiry proceeding, imposed the penalty of dismis sal from service. The Disciplinary Authority, however, has in the said order of imposing penalty, mentioned about ’dismissal without notice’, though the discipl inary proceeding was initiated and the disciplinary action has been taken pursua nt to the finding recorded by the Enquiry Officer in the enquiry report.
Legal Reasoning
I have heard Mr. S.C. Keyal, learned counsel for the petitioner and Mr. S. Dutta, learned counsel appearing for the respondents. Mr. Keyal, learned counsel for the petitioner submits that the disciplin ary proceeding initiated against him has been conducted by the Enquiry Officer i n complete violation of the principles of natural justice, in as much as, the pe titioner has not been allowed the defence assistance and did not grant time on 1 3.11.2003 to take such defence assistance, despite the prayer made in that respe ct and instead the Enquiry Officer has proceeded with the enquiry and complete t he same on 19.11.2003. That apart, according to the learned counsel, the documen ts which were asked for by the petitioner to prove his innocence, have also not been furnished to him and though one document was submitted, the same was given to the petitioner only at the last moment i.e. on the last day of the enquiry i. e. 19.11.2003. Mr. Keyal, the learned counsel further submits that though the original charge memo dated 04.08.2003 has been amended vide communications dated 13.11.20 03 and 17.11.2003, the petitioner has not been allowed the opportunity to file a dditional written statement after amendment of the allegations levelled against the petitioner. The learned counsel, therefore, submits that since the enquiry h as been conducted in gross violation of the principles of natural justice and in violation of the procedural safeguard available to the petitioner, the order of dismissal from service based on the report submitted by the Enquiry Officer is liable to be set aside. Mr. Dutta, the learned counsel appearing for the respondents, on the oth er hand, referring to the records of the enquiry proceeding produced before this Court, has submitted that though on 13.11.2003 the petitioner was asked by the Enquiry Officer as to whether he would like to be represented by any defence ass istant, the petitioner though initially asked for 10 days time, he, however, has agreed for continuance of the disciplinary proceeding against him on day-to-day basis and accordingly the disciplinary proceeding proceeded. It has also been s ubmitted that during cross-examination of the management witnesses, the Enquiry Officer again asked the petitioner whether he would like to be represented by an y defence assistant to which the petitioner has replied in negative and informed the Enquiry Officer that he will conduct the case for himself. The learned coun sel further submits that the petitioner has cross-examined all the management wi tnesses by himself. It has also been submitted by Mr. Dutta that the petitioner wanted two d ocuments in support of his defence, which were made available to the petitioner as it appears from the proceeding dated 19.11.2003 and based on those documents, which were proved as (D Ext.-1) and (D Ext.-2), the management witnesses were a gain allowed to be cross-examined by the petitioner. Mr. Dutta submits that the petitioner never at any point of time objected continuance of the proceeding on 19.11.2003 either on the ground of delay in making available the aforesaid docum ents or on the ground of not making available the documents asked for and on the other hand the petitioner has admitted, in the said proceeding that he has rece ived the copies of all the documents on which the Management has placed reliance in support of the allegation levelled against the petitioner as well as the doc uments which he asked for. Relating to the contention of the petitioner that he has not been given the opportunity to file the additional written statement after issuance of the c ommunications dated 13.11.2003 and 17.11.2003, it has been submitted that by tho se communications there is, in fact, no amendment to the earlier charge and what done was correction of the typographical mistakes in not putting the alphabet ’ s’ after the words ’figure’ and ’saving’. It has also been submitted that the co ncerned SB Account number, which was incorrectly mentioned in the original charg e memo dated 04.08.2003 has been corrected vide communication dated 14.08.2003 a nd the petitioner has filed the reply only thereafter i.e. on 25.09.2003. Accord ing to the learned counsel the correction of the figure by the subsequent commun ications dated 13.11.2003 and 17.11.2003 does not cause any prejudice to the pet itioner as the petitioner knew about the account in respect of which according t o the Bank Management there was misappropriation of fund by the petitioner. The learned counsel, therefore, submits that no procedural illegalities have been co mmitted while conducting the enquiry against the petitioner, which was conducted in compliance with the principles of natural justice by giving all reasonable o pportunity to the petitioner to defend himself. I have considered the submissions advanced by the learned counsel for th e parties and also perused the records of the disciplinary proceeding produced b y Mr. Dutta, the learned counsel appearing for the respondent Bank. The petitioner’s case is not that there is no evidence on record to reco rd finding that the charges levelled against the petitioner have been proved. Ac cording to the petitioner, the enquiry proceeding was conducted against him in v iolation of the principles of natural justice by not allowing him to engage defe nce representative, by not making available the documents, which are in power an d custody of the respondent Bank, as asked for, to substantiate his defence, del ay in furnishing the documents and denial of the opportunity of filing the writt en statement after the amendment of the allegations. To appreciate the aforesaid contention, I have perused the enquiry proce eding. It appears from the proceeding dated 13.11.2003 that the Enquiry Officer had asked the petitioner whether he want any defence representative, to which th e petitioner has replied that he has already written to the Secretary of the Uni on to provide one, which, however, has not been provided till that date. The pet itioner, however, has expressed his willingness to proceed with the enquiry. The petitioner at the same time asked for 10 days time. The enquiry, however, has p roceeded thereafter on 14.11.2003, 15.11.2003, 17.11.2003 and 19.11.2003. The pe titioner in any of these dates did not complain to the Enquiry Officer that he i s not in a position to proceed in the absence of the defence representative. On the other hand, on 17.11.2003 the petitioner was again asked by the Enquiry Offi cer whether he would require any defence assistance, which the petitioner has re plied in negative and wish to defend himself. The enquiry, therefore, proceeded. The petitioner also cross-examined all the three management witnesses examined by the bank in support of the charges levelled against him. The contention of the petitioner that the documents asked for by him to prove his innocence were either not supplied/produced or supplied/produced latel y, also cannot be accepted in view of the proceeding dated 19.11.2003, wherefrom it appears that both the documents asked for by the petitioner have been produc ed by the management and those were exhibited at the instance of the petitioner as DEX-1 and DEX-2. It is no doubt correct that those documents were produced by the management before the Enquiry Officer on 19.11.2003. The petitioner, howeve r, did not raise any objection or asked for time to go through the documents and to question the management’s representative. He instead asked for permission fr om the Enquiry Officer to introduce those documents and put question to the mana gement witness No.3, which the Enquiry Officer did allow and accordingly those d ocuments were marked as exhibits. The contention of the petitioner that the enquiry proceeding initiated a gainst the petitioner and the consequential order of dismissal from service is a lso vitiated as he has not been given the opportunity to file the additional wri tten statement after the amendment of the allegation made in the original charge memo dated 04.08.2003 read with the communication dated 14.08.2003, also cannot be accepted in view of the fact that vide communication dated 13.11.2003 the pe titioner has been informed only about the typographical mistake occurred in not putting the alphabet ’s’ after the words ’figure’ and ’saving’. By communication s dated 13.11.2003 and 17.11.2003 the typographical mistake occurred in mentioni ng the savings bank account in Annexure-C to the charge memo, has been corrected . In the written statement filed by the petitioner, it is his case that he has n ot committed any illegality. The petitioner, in fact, was made known about the s aid account number vide communication dated 14.08.2003 and hence by not affordin g any opportunity to file the additional written statement, no prejudice has bee n caused to the petitioner. That apart, the petitioner never prior to filing of the reply to the proposed punishment on 25.03.2004 prayed for allowing him to fi le additional written statement. The petitioner knew what the allegations agains t him are. That apart, even if the allegation of misappropriation of bank’s fund in respect of those account numbers are excluded, the allegation of misappropri ation in respect of the other accounts having been proved, it would not vitiate the disciplinary action taken by the Disciplinary Authority against the petition er. In view of the aforesaid discussion, I do not find any merit in the writ petition and hence the same is dismissed.