High Court
Case Details
WA 123/2013 BEFORE HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE A.K. GOSWAMI A.K. Goel, CJ This appeal has been preferred against order of learned Single J udge dismissing the writ petition of the appellant and upholding order dated 30. 4.2012 whereby penalty of compulsory retirement was imposed against the appellan t by the respondent Bank. 2.
Legal Reasoning
Apart from the impugned order of compulsory retirement on proved charges of misconduct mentioned in the chargesheet dated 4.9.2002, punishment o f censure has been imposed against the appellant for another misconduct which is now subject matter of another pending writ petition being WP(C) No. 3363/2005. FIR being Silchar P.S. Case No. 1857/2009 under Section 409 IPC is also pending against the appellant alleging misappropriation of Rs. 2,60,640/-. 3.
Legal Reasoning
The appellant was appointed with the respondent Bank in the year 1981 and while serving at Golaghat, the impugned chargesheet dated 4.9.2002 was served on him inter alia alleging that he fraudulently withdrew a sum of Rs. 10 ,000/- misusing his official position by inflated credit balance in the bank acc ount No. 5269. He claimed the amount was borrowed from the customer. The charges heet was to the following effect: (cid:28)1. Your action in borrowing a sum of Rs. 10,000/- from Shri Dip MoniGogoi on 24 .05.2001 without seeking prior permission from the competent authority of the Ba nk amounts to doing an act in contravention of the provisions laid down in HO Ci rcular No. 113/97 dated 23.06.1997 and hence the same constitutes an act of gros s misconduct within the meaning of sub clause (e) of clause 19.5 of Chapter XIX of the Bipartite Settlement, 1966. 2. Your action in issuing the withdrawal slip No. 339709 to yourself against SB A/c. No. 5269 on 06.07.2001 in the absence of the accountholder at the branch wi th a malafide intention of withdrawing cash fraudulently from the branch through the above said SB a/c. amounts to doing an act in violation of the provisions l aid down in HO Circular No. 223/91 dated 21.10.1991 and clause No. 1.97 of Manua l of Instructions Deposits, 1995-96 and hence the same constitutes an act of gro ss misconduct within the meaning of sub-clause (e) of clause 19.5 of Chapter XIX of the Bipartite Settlement, 1966. 3. Your action in filling up the particulars on the withdrawal slip No. 339709 i n your on hand writing, affixing forged signature of the account holder of SB A/ c. No. 5269 therein and finally fraudulently withdrawing an amount of Rs. 10,000 /- from the branch through SB A/c. No. 5269 on 06.07.2001 amounts to misusing yo ur official position in the bank and doing an act which is prejudicial and detri mental to the interest of the Bank and hence the same constitutes an act of gros s misconduct within the meaning of sub-clause (j) of clause 19.5 of Chapter XIX of the Bipartite Settlement, 1966. 4. Your action in manipulation the balance figures in the SB ledger by inflating the credit balance to the extent of Rs. 10,000/- on 27.06.2001 and 06.07.2001 i n SB A/c. No. 5269 so as to enable you to pass the withdrawal slip No. 339709 fo r cash payment in an unfair manner amounts to tempering with the official record s of the branch which is prejudicial to the interest of the Bank and hence the s ame constitutes an act of gross misconduct within the meaning of sub-clause (j) of clause 19.5 of Chapter XIX of the Bipartite Settlement, 1966 5. Your action in passing the withdrawal slip No. 339709 dated 06.07.2001 for Rs . 10,000/- drawn on SB S/c. No. 5269 for cash payment notwithstanding the fact t hat the credit balance available in the SB A/c. No. 06.07.2001 was not sufficien t to honour the said withdrawal slip and signature of the drawer purportedly aff ixed on the said withdrawal slip was not tallying with the specimen signature of the drawer available on the record of the branch amounts to doing an act in vio lation of the provisions laid down in HQ Codified Circular No. 58/93 dated 27.04 .1993 and clause No. 1.89(a) of Manual of Instructions- Deposits, 1995-96 and he nce the same constitutes an act of gross misconduct within the meaning of sub-cl ause (e) of clause 19.5 of Chapter XIX of the Bipartite Settlement, 1966. 6. Your action in unauthorisedly entering the particulars relating to withdrawal slip No. 339709 dated 06.07.2001 for Rs. 10,000/- before and after fraudulent e ncashment of the withdrawal slip in certain relevant records/registers which are to be handed by other staff members of the branch amounts to doing an act in vi olation of the job allocation made by the higher authority and with an ulterior motive of concealing your misdeed from the notice of other staff members and off icials of the branch which is prejudicial to the interest of the Bank and hence the same constitutes an act of gross misconduct within the meaning of sub-clause (j) of clause 19.5 of Chapter XIX of the Bipartite Settlement, 1966. 7. Your action in managing to get the genuine signature of the account holder of SB A/c. No. 5269 affixed on the paid withdrawal slip No. 339709 dated 06.07.200 1 for Rs. 10,000/- subsequent to passing of the said withdrawal slip for cash pa yment with a view to giving an impression that the accountholder himself had wit hdrawn a sum of Rs. 10,000/- from his SB A/c. No. 5269 on 06.07.2001 amounts to making an attempt to conceal your involvement in the fraud and tampering with th e official records of the branch which is prejudicial to the interest of the Ban k and hence the same constitutes an act of gross misconduct within the meaning o f sub-clause (j) of clause 19.5 of Chapter XIX of the Bipartite Settlement, 196 6. 8. Your action in deriving undue pecuniary benefits to the extent of Rs. 10,000/ - by fraudulently withdrawing the said amount from the branch on 06.07.2001 thro ugh SB A/c. No. 5269 of the customer amounts to tarnishing the image of the Bank in the eyes of the customer/public which is also prejudicial to the interest of the Bank and hence the same constitutes and act of gross misconduct within the meaning of Sub-clause (j) of clause 19.5 of Chapter XIX of the Bipartite Settlem ent, 1966. (cid:29) The appellant did not dispute withdrawal of the amount but took 4. the stand that on the request of the account holder, he made over payment of Rs. 10,000/- without scrutinising the concerned ledger on the spot. His stand was : (cid:28)2. I had no malafide intention of withdrawing cash fraudulently from SB A/c No. 5269 as alleged in the charge sheet. In fact, it was only due to the insistence of the said SB A/c holder to meet his emergency due to road accident the said a mount was drawn hurriedly. The incident was well within the knowledge of the In- Charge Branch Manager, Mr.Barua who directed me to somehow help the party to mee t his emergency as the latter happened to be well wisher of our Bank/ Branch. 3. The signature on the withdrawal slip under reference was not a forged one. It was signed by the concerned account holder in a hurried manner due to the reas ons that he met with an accident and his vehicle was severely damaged and he wan ted money urgently. He signed the withdrawal slip under reference on tensed up r estive condition. 5. In my eagerness to help the customer under reference I made immediate cash pa yment to him after obtaining his signature in the withdrawal slip. However, sinc e the signature of the customer did not tally with the signature on the record o f the Branch I have obtained one more signature from him subsequently which tal lied with the signature of the Branch record. Further, as I was very busy and th e customer under reference wanted cash immediately I did not scrutinize the conc erned ledger on the spot. But later it was found that there was no sufficient ba lance and hence the said account was overdrawn to the extent of Rs. 10,000/-. It was only due to my anxiety to help the customer at the time of need this over-d rawing did occur in the account. (cid:29). 5. A departmental enquiry was conducted and report dated 3.3.2003 w as submitted holding the charge to be proved. After following the due procedure, the impugned punishment was imposed. 6. Main contention on the basis of which the impugned order was cha llenged was that the key witness i.e. the customer was not examined and affidavi t of the customer was in favour of the appellant. 7. Learned Single Judge held that the writ petition was filed even before final order could be passed. The same was dismissed for default on 30.9.2 010 and was restored on 6.8.2012 and the impugned order was passed after the wri t petition was dismissed for non-prosecution.Apart from above, the enquiry offic er had submitted a detailed report discussing the entire evidence and held the a ppellant guilty of the charges. The appellant duly participated in the enquiry p roceedings. Filing of affidavit by a customer and thereby supporting the stand o f the appellant was not enough to exonerate. It was admitted that he had allowe d withdrawal beyond the credit balance. The matter was in the realm of appreciat ion of evidence and finding of disciplinary authority was not open to challenge on the basis of re-appreciation of evidence. The disciplinary authority had take n into consideration all the facts and circumstances. It was also noted that he had been declared absconder in the criminal proceedings. He had been given charg esheet dated 18.8.2010 for misappropriation of Rs. 2,60,240/-. Having regard to the nature of employment, the punishment could not be held to be harsh. It was o bserved: (cid:28)14. On perusal of the above statements made by the petitioner in response to the charge sheet, what is transpired is that the petitioner has virtually admi tted the charges explaining the same in reference to the alleged emergent situa tion. Be that as it may, in due course the departmental enquiry was held in whic h the petitioner was assisted by a defence representative. On conclusion of the enquiry proceeding, the enquiry officer submitted his enquiry report on 03.03.20 03 vide his forwarding letter dated 07.03.2003 (Annexure-XVII) holding the petit ioner guilty of the charges. On receipt of the copy of the enquiry report and o n being asked, the petitioner made his Annexure-XVIII representation dated 01.04 .2003 against the same. Thereafter, the disciplinary authority issued the impugn ed Annexure-XIX notice dated 24.06.2003 asking the petitioner to furnish his rep ly to the proposed penalty of compulsory retirement from service of the Bank wit h superannuation benefits and without disqualification from future employment. A s noted above, it was at that stage the petitioner invoked the writ jurisdiction of this Court without responding to the said notice and by virtue of the interi m order operating in this proceeding for all these years, he was still in servic e till the compulsory retirement was imposed on him by the aforesaid order dated 30.04.2012 which according to the petitioner is non existent in view of restora
Decision
tion of the writ petition subsequently. According to the petitioner, the impugned departmental proceeding is abs 15. olutely farce and ought not to have been initiated on the basis of the particula r transaction which eventually did not result in any loss to the Bank. It is the stand of the petitioner that whatever he had done was on good faith without an y ill intention. Mr. K.N. Choudhury, learned Sr. counsel for the petitioner refe rring to the enquiry proceeding submitted that there is absolutely no evidence t o sustain the charges against the petitioner and that the matter has been blown out of proportion and that it is not a case for initiation of departmental proce eding. However, he fairly submitted there might be some negligence on the part o f the petitioner, but the same cannot entail penalty of compulsory retirement. A ccording to him, the customer, i.e. the key witness, having not been examined i n the enquiry, the enquiry proceeding is vitiated. He submitted that the affidav it submitted by the customer, copy of which has been annexed to the writ petitio n as Annexure-VII, ought to have been accepted by the enquiry officer for the pu rpose. He submitted that when the affidavit was not accepted by the enquiry offi cer in absence of the customer, same very principal ought to have been followed in respect of the particular document MEX 17, a letter from the customer as he w as not present in the enquiry proceeding to identify the said letter. Referring to the enquiry report he submitted that the petitioner was deprived of submissio n of his written argument. 16. As against the aforesaid submission made by the learned counsel for the petitioner, Mr. P.N. Choudhury, learned counsel representing the Bank submitted that this Court sitting in writ jurisdiction cannot reappreciate the evidence on record so as to give a different finding. He also submitted that there being no allegation of causing any prejudice to the petitioner in the enquiry proceed ing and the enquiry having been conducted in a just and fair manner, the enquiry proceeding and the impugned notice indicating the proposed penalty are not liab le to be interfered with. He also submitted that the petitioner having already b een imposed with the penalty of compulsory retirement and the said order being n ot under challenge, this writ petition is liable to be dismissed. 17. Mr. K.N. Choudhury, learned Sr. counsel appearing for the petitioner dur ing the course of his argument placed reliance on the two decisions of the Apex court as reported in AIR 1957 SC 882 (Union of India vs. T.R. Varma) and (1970) 1 SCC 709 (State of Assam and anr. vs. Mahendra Kumar Das and ors.) . The said t wo decisions have been relined upon to substantiate the submission that no mater ials should be relied on against the delinquent without giving an opportunity of explaining them. 18. Throughout the writ petition there is no allegation of any procedural ir regularity in conducting the enquiry. What the petitioner has contended in the writ petition is that the enquiry report was prepared in a manner most prejudici al to the interest of the petitioner and that the enquiry proceeding could not h ave been initiated on the basis of the purported letter addressed to the Bank by the particular customer. It has also been contended that there being no malafid e intention on the part of the petitioner in respect of the transaction in quest ion and he having had 22 years of dedicated service, the proposed penalty of com pulsory retirement is totally uncalled for. The petitioner has also referred to non-acceptance of the affidavit submitted by the customer and written brief that was allegedly submitted by him. But while contending so, the petitioner has not even obliquely referred to any prejudice, if any, that was caused to him. The b asic thrust of the case is that the particular incident being a minor one and th ere being no malafide intention on the part of the petitioner, the impugned proc eeding ought not have been initiated. However, as noted above, Mr.Choudhury, lea rned counsel for the petitioner during the course of his argument fairly admitte d that there might be some amount of negligence on the part of the petitioner, b ut the same cannot entail the major penalty of compulsory retirement. 19. As to what are the charges against the petitioner has been noted above. His reply to the charges has also been noted. The only defence advanced by the p etitioner is that he had allowed the overdrawal to meet the emergent situation a s was disclosed by the customer. But the real fact is as has been discussed in the above quoted Annexure-V letter dated 18.07.2001. 20. At the time of the incident the petitioner was the senior most clerk of the Branch officiating as Special Assistant. On 06.07.2001, a withdrawal slip (l oose cheque No. 339709) was passed by him fraudulently. Being the in-charge of t he Section, he took the withdrawal slip himself entering into loose cheque issue register against Savings Bank Account of the customer. He then entered the same in the token scroll register against Token No. 57 for Rs. 10,000/-. Subsequentl y he deposited the same in the Savings Bank ledger although the actual outstandi ng balance in the account was only Rs. 274/-. It is to be noted that on 06.07.20 01, the actual balance of the particular account was Rs. 5,274/-. In the beginni ng of the day of 06.07.2001, the loose cheque mentioned above for Rs. 5000/- was presented across the counter by the account holder himself by which the actual amount got reduced to Rs. 274/-. In order to make fraudulent debit of Rs. 10,000 /-, the petitioner inflated/altered the balance as on 06.07.2001 to Rs. 15,274/- which was actually Rs. 5,274/-, thereby showing the balance as Rs. 10,274/- alt hough the actual balance was Rs. 274/- only. 21. It will be pertinent to mention here that cash scroll was maintained by the petitioner in which he entered the transaction and passed the same to the ca sh cabin. Upon verification, it was found that the signature bearing in the with drawal slip was not of the customer. However, subsequently, the actual signature of the customer was obtained below the earlier signature. Being asked, the peti tioner admitted orally of his involvement in the malpractice. Subsequently, the account was regularised on being advised. As per letter dated 28.02.2002 address ed to the Bank by the customer (Annexure-VIII), the petitioner had fraudulently withdrawn Rs. 10,000/- from his LMV Account No. 20199 and gave it to him towards repayment of the loan of Rs. 10,000/-. That was taken by the petitioner from th e said customer. Thereafter, the petitioner obtained his signature in a pay in s lip for depositing Rs. 10,000/-. In the process, there may not be any financial loss to the Bank, but the manner in which the petitioner carried out the transac tion forging the signature of the customer, cannot be viewed lightly. The Bank b eing a financial institution cannot give indulgence to such activity on the part of its employee which has a potential of exposing the Bank to financial loss an d lack of faith on the Bank. In fact, as noted above, besides this departmental proceeding, the petitioner was involved in another departmental proceeding and p resently a criminal proceeding is pending pertaining to financial loss to the Ba nk. 22. As has been held by the Apex Court in Municipal Committee, Bahadurgarh v s. Krishnan Bihari and ors. reported in (1996) 2 SCC 714, quantum of amount misa ppropriated is not relevant. The amount misappropriated may be small or large, i t is the act of the misappropriation that is relevant. In that case, the delinqu ent was imposed with penalty of dismissal from service which the Apex Court uphe ld. 36. It is not for the writ Court to interfere with the punishment imposed by the disciplinary authority which is a matter within the domain and jurisdiction of the said authority. If the Bank has lost its confidence on the petitioner, i t is within its competence and jurisdiction to impose penalty as it may consider adequate commensurating to the misconduct attributed and proved. It is not for the writ Court to prescribe another penalty in lieu of the penalty imposed by th e disciplinary authority. It will have to be borne in mind that the job entruste d to the petitioner in a financial institution like Bank is that of faith and c onfidence and once it is lost, it is for the Bank to decide as to what penalty s hould be imposed. The amount involved is immaterial, but what matters much is ta rnishing the image of the Bank in the eyes of the valued customers/ public. The petitioner being a Bank employee ought to have marinated utmost integrity, devo tion and diligence. (cid:29) We have heard learned counsel for the appellant. 8. 9. Only contention which has been put forward by learned counsel fo r the appellant is that the chargesheet was in the nature of seeking an explanat ion from the appellant and the same could not, thus, be treated as chargesheet. Reliance has been placed on the judgment of this Court dated 28.4.2010 in Writ A ppeal No. 104 of 2010 (ShriRallenthangVankal -vs- Hindustan Paper Corporation Lt d. &Ors.). 10. We are unable to accept the submission. In the present case, the chargesheet which has already been quoted above is quite specific and the charg e amounts to clear misconduct. The substance of the charge stands admitted. Even otherwise, there is material to substantiate the same. It is not a case of no e vidence. No prejudice is shown to have been caused to the appellant during the d epartmental enquiry. Once the appellant illegally withdrew or allowed withdrawal without there being credit balance and when at least negligence is admitted, it cannot be held that the impugned penalty is illegal. This Court cannot substitu te its opinion for that of the disciplinary authority except where there is no m aterial in support of the charge. In his own written statement quoted earlier th e appellant has taken the stand that the customer was in dire need and he helped him with bonafide intention. The fact remains that his action of withdrawal or permitting withdrawal of amount not available to the credit of the customer was unauthorised and improper. In banking service, it is certainly possible for the disciplinary authority to regard such act as misconduct. Once admitted and prove d facts show misconduct, plea of procedural infirmity can be gone into only if t here is prejudice. Enquiry was duly held and disciplinary authority gave opportu nity to the appellant. In these circumstances, view taken by learned Single Judg e is unexceptional. 11. The appeal is dismissed.