Judgment · High Court · 2012

Learned Single Judge came to the conclusion that the enquiry was conducted fairly giving reasonable opportunity to the appellant and at the conc lusion of which, the Enquiry Officer held that the charges against the appellant stood proved. The order of dismissal as well as the order of Appellate Authorit y are well reasoned orders and no case for interference was made out. Contention of the appellant that penalty of dismissal from service imposed upon the appell ant was shockingly disproportionate was also not accepted. By the impugned judgm ent, learned Single Judge dismissed the writ petition as being devoid of any mer it. 15. Aggrieved, the writ petitioner as the appellant is before us in appeal. Heard Mr. AM Bujarbaruah, learned counsel for the appellant as w

#16. ell as Mr. S.S. Sharma, learned senior counsel for the respondent Bank. 17. Since the charge framed against the appellant is central to the proceeding initiated against him, the same may be referred to, which is reproduc ed hereunder:- (cid:28)CHARGE SHEET It has been alleged against you that while you were working as Assistant (C&A) a t State Bank of India, Jorhat Branch, you have committed serious irregularities as enumerated below:- Smt. Jyoti Borah, a teacher deposited at the Bank her monthly salary bill for Rs . 3,032/- for the month of January, 1997 on 04.02.97 for payment. The proceeds o f the bill was to be credited to her Savings Bank account, maintained with Jorha t Branch. After the bill was paid on 04.02.97, the proceeds could not be credite d to her S.B. account for want of correct account number. Instead a Bankers’ Che que No. 316047 was issued on 04.02.97 for Rs.3,032/- favouring Smt. Jyoti Borah. Subsequently, the Bankers’ Cheque was fraudulently encashed on 18.07.97. After verification of her S.B account, Smt. Jyoti Borah lodged a complaint with the Ba nk regarding non-credit of her salary bill of Rs. 3,032/- into her S.B. account. You surreptitiously obtained the Bankers’ Cheque and forged the signature of Smt . Jyoti Borah, the payee on the reverse of the Bankers’ Cheque. Though the signa ture did not tally, with the recorded one you authenticated the endorsement of t he payee through your remark on the back of the instrument as signature of Smt. J. Borah is verified by me. Thereafter, the Bankers’ Cheque was encashed from th e Teller Counter on 18.07.97. Thus, it is evident that you misappropriated custo mer’s money by adopting unfair practice for your own benefit. Moreover, you did not submit your explanation in reply to Jorhat Branch Memo No. CM/42/164 dated 30.07.98 despite reminder. Your such acts amount to gross mis-c onduct and in-subordination on your part. (cid:29) Thus, it can be seen that the charge against the appellant was t 18. hat he had misappropriated the money of the customer by first forging her signat ure and thereafter, endorsing her signature as genuine by mis-using his position . 19. The Enquiry Officer at the conclusion of the enquiry came to the finding that the appellant had received the payment against the bankers cheque in question and for that he had forged the signature of the customer which was t hereafter verified by him to establish its genuineness. The enquiry report is qu oted hereunder in its entirety:- (cid:28)REPORT OF THE ENQUIRY OFFICER IN CONNECTION WITH DEPARTMENTAL ENQUIRY AGAINST S HRI BIJOY RAJKHOWA, ASSTT.(C&A) FOR ALLEGED FRAUDULENT ENCASHMENT OF BANKERS’ CH EQUE NO. 316047 DATED 04-02-97 FOR RS.3032/- FVG JYOTI BORAH, AT SBI JORHAT BRAN CH. Introduction: The charge framed by the Asstt. General Manager, R-I (Disciplinary Authority) vi de charge sheet No. DPS/99-2000/056 dated 19-05-99 has been divided into the fol lowing segments for the purpose of this report: i) ii) Forging the signature of Mrs. Jyoti Borah, the payee, on the reverse of the Bankers’ cheque by Shri Bijoy Rajkhowa. iii) i Bijoy Rajkhowa, for his own benefit. iv) , by not replying to Jorhat Branch Memo No. CM 42/164 dated 30.07.98 Misappropriation of customer’s money by adopting unfair practice by Shr Gross misconduct and insubordination on the part of Shri Bijoy Rajkhowa Surreptitiously obtaining the bankers’ cheque by Shri Bijoy Rajkhowa. Findings of the case: Surreptitiously obtaining the bankers’ cheque by Shri Bijoy Rajkhowa: Forging the signature of Smti Jyoti Borah, the payee on the reverse of B i) From the minutes of the Enquiry Proceedings, it appears that the Presenting Offi cer did not produce any documentary proof or witness to prove this part of the c harge. The presenting officer only construed that since Shri Rajkhowa could not prove involvement of any other person in the transaction, it is more than clear that he himself had surreptitiously obtained the cheque. As a matter of fact, th e onus of proving surreptitious obtention of the cheque by Shri Rajkhowa lies wi th the presenting officer rather than the charged employee to disprove it. The p resenting officer therefore, could not prove this part of the charge. ii) anker’s Cheque by Shri Bijoy Rajkhowa: Witness No.1 Smti Jyoti Borah, during her witness, deposed that she never receiv ed the banker’s cheque (M-2) and the signatures appearing on the reverse of the bankers’ cheque are not her signatures. On the other hand, the Charged Employee did not make any vigible effort during the enquiry to prove that the signatures appearing on the reverse of the bankers’ cheque belonged to the payee. It is the refore, apparent that the payees signature on the reverse of the cheque are forg ed ones. The Charged employee during cross examination of the witness No. 2 stated that h e verified the signature of Jyoti Borah. Inferance. The forged signature of the payee was verified by the charged employe e. The Charged Employee could not prove involvement of any other person whose si gnature was verified by him. This implies that the signature of the payee was fo rged by him and the same was verified by him in order to facilitate the payment of the cheque. iii) Misappropriation of customer’s money by adopting unfair practice by Shri Bijoy Rajkhowa, for his own benefit. Witness No. 2, during examination stated for sure that the payment of the banker ’s cheque was made to Shri Bijoy Rajkhowa. The Charged Employee, in his report has pointed out certain procedural irregular ities on the part of the Teller in making the payment to the former. But fact re mains that notwithstanding the irregularities if any on the part of the Teller, which is not the subject matter of this enquiry Shri Bijoy Rajkhowa had taken th e payment from the teller. The Charged Employee, in his report (page-2) stated- (cid:28)If I had any such intention to fraudulently encashed the amount then I should not in later part to negotiat e with Mrs. Jyoti Borah for amicable settlement of the matter and &.. (cid:29) This is a clear admission by the Charged Employee that he made some amicable settlement wi th Mrs. Jyoti Borah for payment of Rs. 3032/- from his pocket as evidence by exh ibit M-11. Mrs. Jyoti Borah had complained to State Bank of India, Jorhat Branch regarding not crediting the amount of bill deposited for credit to her account vide exhibi t M-9. But her complaint was not against Shri Bijoy Rajkhowa. The Charged Employ ee did not produce any exhibit which warranted an amicable settlement in the mat ter. Therefore, what had provoked the Charged Employee to pay the amount to Mrs. Jyoti Borah and settle amicably is a matter of mystery. Under such circumstances, there is a strong ground to construe that the Charged Employee had misappropriated the amount received from the Teller against the che que and attempted to conceal it by amicably settling it with the complainant. The Charged Employee in his defence brief stated that Mrs. Jyoti Borah lodged th e complaint to the bank after 1 year 4 months from the date of depositing the bi ll for credit to her account, and hence the Charged Employee sensed doubt about her acts. This doubt should have been clarified by the Charged Employee from Mrs . Jyoti Borah, in as much as, the charged employee had cross examined Mrs. Jyoti Borah (W-1). The charged employee lastly stated in his defence report (cid:28)Lastly I like to say t hat whatever I did with good faith for amicable settlement of the matter with be lief to proof my innocence &. (cid:29) This is an indirect admission of his fault by the Charged Employee. From the fac ts of the case, it is evident that neither the bank had accused him of the offen ce till then, nor Mrs. Jyoti Borah lodged any claim with him to repay the amount . All these circumstances and depositions strongly establish that the Charged Em ployee had taken the payment from the Teller counter and subsequently on the app rehension of being caught, he tried to settle the issue without the knowledge of the bank. Therefore, this part of the charge is proved. iv) Gross misconduct: The presenting officer had exhibited document No. M- 10 which is a copy of Jorhat branch letter No. CM/42/164 dated 30.07.98. The Cha rged Employee did not submit any exhibit to prove that his reply to the Jorhat b ranch letter was submitted within the stipulated period as stated in the last bu t one para of his letter dated 28.06.99 addressed to the Asstt. General Manager (M-6). This part of the charge therefore, holds good. Conclusion: The above findings lead to the conclusion that Shri Bijoy Rajkhowa had received payment against the Bankers’ cheque No. 316047 from Jorhat Branch Teller (W2) on

18.07.97. Circumstances lead to prove that in order to make way to receive the payment, he forged the signature of Shri Jyoti Borah (Payee) which was again verified by hi m to establish its genuineness. The charged employee was not the custodian of ba nkers Cheques. But it is proved that he received the payment against the banker’ s Cheque. Therefore, circumstances prove that the banker’s cheque was surreptiti ously obtained by Shri Bijoy Rajkhowa and subsequently obtained payment thereof. The Charged Employee did not produce any letter in response to Jorhat branch Mem o No. CM/42/164 dated 30.07.98. Therefore, he could not prove that he replied to the letter within the stipulated time. Remarks: From what has been discussed above, I find that the charge as communicated to Sh ri Bijoy Rajkhowa vide SBI, ZO, Memo No. DPS/99-2000/056 dated 19.05.99 as a who le has been proved. Once the conclusion was reached after following the due procedure that t 20. he appellant had forged the signature of the customer and again thereafter verif ied it by misusing his position to establish its genuineness to misappropriate t he amount, imposition of consequential punishment became inevitable. The situat ion was further compounded by the appellant himself when he admitted that he rep aid the amount in question to the customer, though he says that was done to main tain the good image of the Bank. (T.NAHARDEKA) Enquiry Officer (cid:29)

#21. The imposition of punishment was further scrutinized by the Appellate Au thority and after a detailed examination, the punishment was upheld. The follow ing is the relevant portion of the order of the Appellate Authority :- (cid:28)04. I have carefully examined the various records o f the case and observed that on conclusion of the departmental enquiry, a copy o f the Enquiry Report-cum-Findings was forwarded to the appellant to enable him t o make his submission on the report within 15(fifteen) days vide Memo No. DPS/99 -2000/298 dated 10.09.99 which was acknowledged by the appellant on 22.09.99. Th e appellant was given ample opportunity to submit his representation to rebut th e allegation proved in the enquiry. But the appellant did not submit any represe ntation on the Enquiry Report within the stipulated period. The appellant’s cont ention that he was in no way involved in the mis-appropriation of customer’s mon ey is not acceptable as the agreement dated 18.09.98 executed between the payee of the Banker’s Cheque Smt. Jyoti Bora and the appellant clearly establishes the refund of the defrauded amount by the appellant. Secondly, the contention of th e appellant that Smt. Jyoti Borah(the payee of Banker’s Cheque) was known to Shr i Rajkhowa is refuted and disproved in the enquiry proceedings on 20.08.99 where in it is recorded that Smt. Jyoti Bora came to know the appellant for the first time when he came to her residence to pay her the money. Thirdly, Shri J.Phukan, the concerned Teller confirmed during his witness in regular hearing on 20.8.99 that the payment of Banker’s Cheque was made to the appellant on 18.07.97. Ther efore, the appellant mis-appropriated the amount received from the Teller and at tempted to conceal the fact by amicably settling it with the complainant, Smt. J yoti Bora.

#05. There is enough evidence to support the allegati on against the appellant. I find that the appellant has not brought out any new facts to rebut the allegation established against him except his personal grieva nces which are not related to the charge framed against him. I have also intervi ewed the appellant at this office on 12.07.2000 before disposing of the appeal p referred by Shri Rajkhowa. Having regard to the malafides of the appellant which seriously reflects on his integrity, the penalty inflicted is just and adequate and I do not see any reason to interfere with the order of the Disciplinary/App ointing Authority. I, therefore, hereby reject the appeal preferred by Shri B. R ajkhowa, Ex-CAT. The punishment is upheld. (cid:29) 22. Learned Single Judge after due consideration held that the departmental enquiry was conducted in accordance with law and that the findings reached as r ecorded in the report of the Enquiry Officer were based on reasons after discus sing not only the statements of the witnesses, but also the material documents w hich were exhibited in the departmental enquiry. Learned Single Judge further he ld that in the present case, the appellant himself admitted that he had authenti cated the signature of the customer Smt. Jyoti Borah on the reverse side of the bankers cheque. The conclusions of the learned Single Judge have been summarized in paragraphs 20 & 25 of the judgment under appeal, which are quoted herein bel ow:- (cid:28)20. From the above discussions, this Court is of the considered view that the petitioner has failed to make out his case for interference with the f inding of the enquiry officer that the charge against the petitioner is proved a nd also of the considered view that dismissal and also the impugned order of the appellate authority are well reasoned and valid. (cid:29) Keeping in view of the ratio laid down by the Apex Court in the (cid:28)25. above cases regarding the power of judicial review of the quantum of punishment and also in the facts and circumstances of the present case, this Court is of th e considered view that submissions of the learned counsel of the petitioner that penalty of dismissal from service imposed to the petitioner is shockingly dispr oportionate is not acceptable. (cid:29) 23. We are in agreement with the view expressed by the learned Single Judge. Power of the writ court in a matter relating to imposition of penalty after hol ding of regular departmental proceeding is ordinarily limited to ensuring that t he delinquent gets a fair opportunity to defend his case; that there is no proce dural impropriety or irregularity and that the punishment imposed is not so disp roportionate that it is shocking to the judicial conscience. Keeping in mind, th e above contours of the writ power, we find that the conclusions and decision of the learned Single Judge does not call for any interference. Conduct of a bank employee must be above board. He is required to mainta 24. in absolute integrity, which is of paramount consideration. On his conduct rests the confidence of the customers of the bank. Compromise with doubtful integrity will not only erode the faith of the people using the bank’s facilities but al so in the functioning of the bank itself. In such matters, quantum of misappropr iation is immaterial, the factum of misappropriation itself would justify the di sciplinary action taken. Considering the above, in the present case, we do not find any good and sufficient ground to interfere with punishment imposed. 25. e same is accordingly dismissed but without any order as to cost. In view of the discussion made above, we find no merit in the appeal. Th