High Court
Case Details
WP(C) 5283/2012 BEFORE HON’BLE MR JUSTICE A.K.GOSWAMI JUDGMENT AND ORDER Heard Mr. K.Sarma, learned counsel for the petitioners in both t he cases as well as Mr. S.Dutta, learned counsel appearing for the respondents i n both the cases. 2. e writ petitions are taken up for disposal at the admission stage itself. 3. The petitioner in WP(C) No.3813/2012 was an Officer of Assam Gramin Vikash Bank ,for short, the Bank , and while he was posted in the Dhemaj i Branch, a departmental proceeding was initiated on 10.05.2010 under Regulation 38.1 (b) of Assam Gramin Vikash Bank (Officers & Employees) Service Regulation, On the request of the learned counsel for the parties, both thes 2006, for short, the Regulation. The article of charges were as under: (cid:28)Article of charges During the tenure of service as Officer of Dhemaji branch from 28.07.2008 to 26. 02.2010 you failed to take all possible steps to ensure and protect the interest of the Bank and discharge your duty with utmost integrity, honesty, devotion an d diligence in as much as:- (1) On 06.03.2009, you credited an amount of Rs.12,172/- in your S.B. A/c.No. 11 3502 by debiting Conveyance Loan A/c.No.31 showing payment against Insurance Pre mium without any voucher. The above transactions were done in the computer by yo u by using your duel ID-KRD & DRK. Subsequently, you withdrew the money. Thus yo u abused your official power and defrauded Bank’s money to the extent of Rs. 12, 172/- (Rupees twelve thousand one hundred seventy two) for your personal gain an d purpose. (2) By adopting similar modus operandi as mentioned under column No.(1) above, you defrauded the Bank’s money to the extent of Rs. 40,253 /- (Rupees forty thousand two hundred fifty three). The details are given here u nder:- SL. NO Credited to Date of Transaction Amount Involved User- ID Debited to 1 08.05.2009 Rs.5000/- KRD DRK Conveyance A/C N o.31 SBA/C No.113502 2 -do- 3 -do- 4 -do- 5 6 .24 No. 4 16.05.2009 Rs.5000/- KRD DRK 08.05.2009 Rs.5000/- KRD DRK 02.06.2009 Rs.10000/- KRD DCM -do- -do- -do- 02.05.2009 Rs.7253/- KRD DRK Composite A/C No -do- 19.03.2009 Rs.8000/- KRD DRK Housing loan A/C -do- Total Rs.40253/-
Legal Reasoning
15. The principle laid down by this Court in the case of A.R.Attal (su pra), Dimbeswar Saikia (supra) and Probin Kumar Phukan (supra) , relied on by t he petitioners, is not applicable in the facts of the present case. As has been noted earlier, no materials having been laid by the petitioner(s), this Court i s not even aware of the charges leveled against the persons with whom, in the ma tter of imposition of penalty, the petitioner(s) seek parity. 16. ated as follows:- (cid:28)6. It is further contended that some of the delinquents were let off with a min or penalty while the petitioner was imposed with a major penalty of removal from service. We need not go into that question. Merely because one of the officers was wrongly given the lesser punishment compared to others against whom there is a proved misconduct, it cannot be held that they too should also be given the l esser punishment lest the same mistaken view would be repeated. Omission to repe at same mistake would not be violative of Article 14 and cannot be held as arbit rary or discriminatory leading to miscarriage of justice. It may be open to the appropriate higher authority to look into the matter and take appropriate decisi on according to law (cid:29). 17. as held as follows: (cid:28)7. It is settled law that the court is not a court of appeal to go into the qu estion of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a governme nt servant based upon the proved misconduct against the government servant. Its proportionality also cannot be gone into by the court. The only question is whet her the disciplinary authority would have passed such an order. It is settled la w that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the court w In Nand Kishore Shukla (supra), in Para 7, the Supreme Court h ould be loath to interfere with that part of the order. The order of removal doe s not cast stigma on the respondent to disable him from seeking any appointment elsewhere. Under these circumstances, we think that the High Court was wholly wr ong in setting aside the order (cid:29). 18. Supreme Court laid down as follows: In Chandigarh Administration (supra), in Paragraphs 8 and 9, the (cid:28) 8. We are of the opinion that the basis or the principles, if it can be call ed one, on which the writ petition has been allowed by the High Court is unsust ainable in law and indefensible in principle. Since we have come across many suc h instances, we think it necessary to deal with such pleas at a little length. G enerally speaking, the mere fact that the respondent-authority has passed a part icular order in the case of another person similarly situated can never be the g round for issuing a writ in favour of the petitioner on the plea of discriminati on. The order in favor of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be follow ed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of h is case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illeg ality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because t he respondent authority has passed one illegal/unwarranted order, it does not entitled the High Court to compel the authority to repeat that illegality over a gain and again. The illegal/unwarranted action must be corrected, if it can be d one according to law- indeed, wherever it is possible, the Court should direct t he appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent authority to repe at the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discri mination. Giving effect to such pleas would be prejudicial to the interests of l aw and will do incalculable mischief to public interest. It will be a negation o f law and the rule of law. Of course, if in case the order in favour of the othe r person is found to be a lawful and justified one it can be followed and a simi lar relief can be given to the petitioner if it is found that the petitioners’ c ase is similar to the other persons’ case. But then why examine another person’s case in his absence rather than examining the case of the petitioner who is pre sent before the Court and seeking the relief. Is it not more appropriate and con venient to examine the entitlement of the petitioner before the court to the rel ief asked for in the facts and circumstances of his case than to enquire into t he correctness of the order made or action taken in another person’s case, which other person is not before the case nor is his case. In our considered opinion, such a course-barring exceptional situations- would neither be advisable nor de sirable. In other words, the High Court cannot ignore the law and the well-accep ted norms governing the writ jurisdiction and say that because in one case a par ticular order has been passed or a particular action has been taken, the same mu st be repeated irrespective of the fact whether such an order or action is contr ary to law or otherwise. Each case must be decided on its own merits, factual a nd legal, in accordance with relevant legal principles. The orders and actions o f the authorities cannot be equated to the judgments of the Supreme Court and Hi gh Courts nor can they be elevated to the level of the precedents , as understoo d in the judicial world. (What is the position in the case of orders passed by a uthorities in exercise of their quasi-judicial power, we express no opinion. Tha t can be dealt with when a proper case arises). 9. Coming back to the facts of this case, if only the High Cou rt had looked to the facts of this case instead of looking to the facts of some other case, we are sure, it would have dismissed the writ petition in view of th e several facts stated hereinbefore. The High Court fell in grave error in allow ing the writ petition on the said ground and in importing the theory of discrimi nation in such a situation. Question of discrimination could have arisen only i f to findings were recorded by the High Court, viz., (1) the order in favour of Prakash Rani was a legal and valid one and (2) the case of the writ petitioners was similar in material respects to the case of Prakash Rani but she has not b een accorded the same treatment. No such findings have been recorded by the High Court in the case. (cid:29) 19. Having regard to the charges leveled against the petitioner(s), which also includes the charge of misappropriation, it cannot be said that the p enalty of compulsory retirement imposed on the petitioner(s) is too harsh. No d oubt, the petitioner(s) had paid back the money which they had misappropriated. However, as held by the Supreme Court in Narendra Nath Bhalla Vs State of U.P. A nd Ors., reported in (2007) 15 SCC 775, mere repayment of money does not absolve one of serious charge of misappropriation. 20. applications and accordingly , the same are dismissed. No costs. In view of the aforesaid discussions, I find no merit in these
Arguments
(3) On 10.02.2009, you fraudulently debited an amount of R s.53000/- from COD A/C No.6 of Sri Digen Chandra Medak, Officer and credited the same to SB A/C No. 104488 of Sri Sadagar Baruah without any voucher. Subsequent ly, the account holder withdrew the money. In order to make the payment of afor esaid anount, on 03.03.2009, you unauthorizedly debited Rs.80000/- from your ow n Housing Loan A/C No.4 and credited Rs.27000/-(Rupees twenty seven thousand) in your SB A/C No. 113502 and rest Rs.53000/- in COD A/C No.6 of Sri Digen Chandra Medak. It reveals from the record that all transactions were done in computer by you using your duel ID (KRD & DRK). Thus, you misused your official power and taken out the Bank’s money to the extant of Rs.80000/-(Rupees eighty thousand) for your personal gain and purpose. (4) You intentionally made withdrawal beyond the sanctioned limit of Rs.35000 0/- in your own COD A/C No. 5 for several occasions. On 01.06.2009, withdrawable amount was Rs.7.92 (Rupees seven and ninety two paise) only in the account but you overdrew Rs.23000/-(Rupees twenty three thousand) on 3 (three) occasions of which Rs. 18000/- in cash on 2(two) occasions and Rs.5000/- in transfer payment. The above transactions were made and authorized by you using your own ID (KRD & DRK). Thus, you abused your official power by violating Bank’s lending norms and taken out Bank’s money to the extant of Rs.22992.08 (Rupees twenty two thous and nine hundred ninety two and paisa eight). By doing above modus operandi as mentioned in point No.(1) to (4), you defr auded Bank’s money amounting to Rs.155417.08 (Rupees one lakh fifty five thousan d four hundred seventeen and paise eight). On detection, you deposited Rs.132425 .00 to the Bank on different dates (Rs.50,000.00 on 30.06.2009 and Rs. 82,425.00 on 12.08.2009) and also regularized the COD A/c.No.5 by depositing the excess drawl amount i.e. Rs.22,992.08 (cid:29). 4. On conclusion of the departmental proceeding , major penalty of compulsory retirement was imposed on him in terms of Regulation 39.1 (b) of the Regulation by an order dated 01.12.2011, which was upheld by the appellate au thority on appeal. 5. The petitioner in WP(C) No. 5283/2012 was an Officer of the Bank and while he was posted at Tezpur Branch, a departmental proceeding was initiat ed on 06.01.2010 under Regulation 38.1 (b) of the Regulation. The Article of cha rges were as under: (cid:28)Articles of charges During the tenure of service as Officer at Bank’s Tezpur branch , you failed t o take all possible steps to ensure and protect the interest of the Bank and dis charge your duty with utmost integrity, honesty, devotion and diligence in as mu ch as:- (1) On 16.07.98, you opened two SB accounts in the name of your minor daughters, Miss Chandamita Tamuli and Miss Anindita Tamuli. The account n umbers are SB-7014 & 7015 respectively. On 18.02.2008, you prepared transfer vou chers of Rs. 50,000/- with malafide intention and credited the same in SB A/c No .7014 debiting P/L interest on SB head for Rs.50,000/-. Subsequently, you withdr ew the amount on 20.02.2008 vide Cheque No.0261501 dated 20.02.2008. Thus, you d efrauded the Bank’s money to the extent of Rs.50,000/- (Rupees fifty thousand) f or your personal gain and purpose. (2) On 15.01.2009, you again credited Rs. 50321/- in the above m entioned SB A/c.No.7014 maintained in the name of your daughter by debiting P/L interest on SB head without preparing any voucher. Subsequently, you withdrew th e amount on various dates. By doing so, you defrauded the Bank’s money to the ex tent of Rs.50321/- (Rupees fifty thousand three hundred twenty one) through your daughter’s SB A/c.No.7014 for your personal gain and purpose. (3) Similarly, on 31.03.2009, you again credited Rs.50,125/- in th e above mentioned SB A/c. No.7014 by debiting Debit Interest Adjustment Account. With your malafide intention you prepared and signed the vouchers and the same was posted in the computer system by you as operator. Thus, you defrauded Rs.50, 125/- (Rupees fifty thousand one hundred twenty five) through the account for yo ur personal gain and purpose. (4) On 12.07.2008, you credited Rs.15,000/- in the SB A/c.No.7015 ma intained by you in your minor daughter’s name by debiting P/L interest on SB hea d. With your ulterior motive you prepared and signed the vouchers and also poste d in the respective ledger in the computer system as operator. Subsequently, you withdrew the amount from the account on various dates and misappropriated the B ank’s money to the extent of Rs.15,000/- (Rupees fifteen thousand) (cid:29). 6. On conclusion of the departmental proceeding, major penalty of c ompulsory retirement was imposed on him in terms of Regulation 39.1(b) of the Re gulation by an order dated 07.10.2011, which was also upheld by the appellate a uthority . 7. :- In Paragraph 13 of WP(C) No. 3813/2012, it is stated as follows (cid:28)13. That the petitioner by way of the instant Application is not challenging the legality or otherwise of the departmental proceeding initia ted and disposed against him and the charges made there under, which were bonafi de admitted by the Writ Petitioner and he also repaid the entire amount defraude d by him , which fact is also admitted by the Respondent Bank as well as a porti on of which is also reflected in the STATEMENT OF DEPOSIT SUSPENSE ACCOUNT AS PE R SYSTEM AUDIT DATED 12.08.2009. But the point of grievance on the part of the p etitioner is that dimensions of frauds committed by him is very much similar and /or very much lower to that of the other officers named hereinabove and this fac t is reflected in the said STATEMENT OF DEPOSIT SUSPENSE ACCOUNT AS PER SYSTEM A UDIT as well. But even though said Sri Manoranjan Biswas, Sri Nadeswar Saikia, S ri Subhash Chandra Dey and Sri Digen Chandra Medok, Officers of the Dhemaji Bran ch Case of the Bank during the said period of time, have been imposed much minor penalties (Annexure 10) than that of the petitioner (cid:29). 8. follows:- In Paragraph 11 of WP(C) No. 5283/2012, the petitioner states as (cid:28)11. That the petitioner by way of the instant Application is not challengin g the legality or otherwise of the Departmental Proceeding initiated and dispose d against him and the Charges made there under, which were bona fide admitted by the writ petitioner and he also repaid the entire amount allegedly defrauded by him, which fact is not denied by the Respondent Bank as well at any point of ti me. But the point of grievance on the part of the petitioner is that dimensions of frauds committed by him is very much similar and/or very much lower to that o f the Officers, namely Sri Manoranjan Biswas, Sri Nadeswar Saikia, Sri Subhash C handra Dey and Sri Digen Chandra Medok of the Dhemaji Branch Case of the Bank. B ut even though said Sri Manoranjan Biswas, Sri Nadeswar Saikia, Sri Subhash Chan dra Dey and Sri Digen Chandra Medok, Officers of the Dhemaji Branch Case of the Bank, have been imposed much minor penalties, by withholding the increments only , than that of the petitioner and this fact is reflected in the Reply to the App lication filed by one Sri Kumar Rana Das, one of the Officers involved in the Dh emaji Branch Case during 2008-2009, under the provisions of the Right to Informa tion Act, 2005 (cid:29). 9. Mr. K.Sarma, learned counsel for the petitioners, in his submiss ion, has reiterated that the petitioners are not challenging the legality or oth erwise of the departmental proceeding, but are aggrieved by the fact that in ide ntical fact situation, Sri Manoranjan Biswas was imposed penalty of reduction o f Basic Pay by 6(six) stages with cumulative effect. Penalty of reduction of Bas ic Pay by 4(four) stages with cumulative effect for a period of two years was im posed on Sri Nandeswar Saikia and Sri Subhash Ch. Dey and penalty of reduction of Basic Pay to the minimum of scale i.e. Rs.14,500/- was imposed upon Sri Dig en Chandra Medok. He submits that the Bank has adopted a totally discriminatory approach in imposing penalty ,although charges in respect of the said Officers a nd the petitioners are same. He submits that in the circumstances, the order im posing penalty of compulsory retirement upon the petitioners is liable to be int erfered with and the respondents are liable to be directed to impose lesser pena lty as was imposed in case of the aforesaid four persons. 10. To substantiate his argument that the respondents are not enti tled to discriminate between the similarly situated employees in the matter of imposition of penalty, the learned counsel has placed reliance on the followi ng decisions:- 1. 2005 (4) GLT 442 (A.R.ATTAL (EX.H/C) Vs State of Arunachal Pradesh And Ors). 2. 2003 (3) GLT 588 ( Dimbeswar Saikia And Anr. Vs Union of India And Ors) 3. 2001 (2) GLT 227 ( Probin Kumar Phukan Vs Union of India & Ors) 11. Mr. S.Dutta, learned counsel for the respondents, has submitted that that the charges have been established against the petitioners are not in dispute and that , in fact , the petitioners are questioning only the punishmen t imposed. Placing reliance on the affidavit(s) filed, the learned counsel submi ts that the charges leveled against the Officers, namely, Sri Manoranjan Biswas, Sri Nandeswar Saikia, Sri Subhash Ch. Dey and Sri Digen Ch. Medok were formula ted on different issues, which had no link with the charges framed against the petitioners and penalties were imposed upon the said delinquents on the basis o I have considered the rival submissions made by the learned coun f gravity of misconduct in the respective cases. He submits that in the facts a nd circumstances of the case, the plea of discrimination in connection with impo sition of penalty, is wholly misplaced. The learned counsel has placed relianc e on the following decisions of the Supreme Court:- 1. (1995) 1 SCC 745 (Chandigarh Administration And Anr Vs Jagjit Singh And Anr) 2. (1997) 3 SCC 371 (Balbir Chand Vs Food Corporation of India Ltd. And Ors) 3. (1996) 3 SCC 750 (State of U.P. And Ors Vs Nand Kishore Shukla And Anr) 12. sel for the parties. I have also perused the materials on record. 13. The petitioner(s) have not brought on record the charges and ot her materials with regard to the disciplinary proceeding initiated against Sr i Manoranjan Biswas, Sri Nandeswar Saikia, Sri Subhash Chandra Dey and Sri Dige n Chandra Medok. Averments have only been made that the dimension of fraud com mitted by him is very much similar and/or lower to the frauds committed by the a foresaid four persons. The categorical stand of the Bank is that there is no li nk of the charges leveled against the petitioners and the said four persons. In A.R.Attal (supra) and Dimbeswar Saikia (supra), joint departm 14. ental proceeding was initiated against the delinquents. In A.R.Attal (supra), t his Court recorded a finding that the charge against the co-delinquent, namely, the Commandant was more serious than the petitioner , who was awarded penalty of dismissal and it is in that context, this Court had set aside the penalty of di smissal imposed on the petitioner and had imposed penalty of forfeiture of thre e increments with cumulative effect, which was awarded to the Commandant. In D imbeswar Saikia (supra), considering that the Commanding Officer who was proceed ed with in a common proceeding with the petitioners, was imposed lesser penalty while awarding penalty of dismissal to the petitioners, this Court, while inter fering with the punishment imposed, had directed the authority to impose any oth er penalty as deemed fit and proper. In Probin Kumar Phukan (supra), this court took a view that more or less the same punishment should be imposed on the petit ioner as had been imposed on another delinquent against whom more serious charge s had been proved as otherwise the same would amount to discrimination against t he petitioner. In Balbir Chand (supra), in Para 6, the Supreme Court has st