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2004 DIGILAW 414 (GAU)

Debashis Kr. Dutta v. United Bank of India

2004-06-22

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. The petitioner who is a Bank employee has invoked the writ jurisdiction of this Court by filing the instant writ petition being apprehensive of placing him under suspension by the respondent Bank. Certain allegations were made against the petitioner by letter dated 9.10.2003 asking him to explain the circumstances leading to the same. The contents of the said letter are reproduced below : you were attached to bank's Dibrugarh Branch as Clerk during the period from 29.10.85 to 28.9.2002. During is tenure, you were allotted to work in Term Deposit Section as dealing Clerk since 7.9.1999 to 20.8.2001 by two Office Order No. 80/99 dated 7.9.1999 and office order No. 51/2000 dated 29.4.2000. Taking advantage of your working in the department, you had committed the following irregularities in manipulation of Bank's record, leading to financial loss cause to the Bank. 1. You were maintaining 14 Nos. of Fixed Deposit A/Cs having an aggregate face value of Rs. 4,60,000 under monthly interest scheme, with a preferential rate of interest with our Dibrugarh Branch. Investigation has revealed that before the maturity date, when rate of interest has declined, you had fraudulently altered and extended the date of expiry of five fixed deposit A/Cs by extending the duration upto 120 months, which were originally opened for 42 months. Such fraudulent alteration of maturity date in FD a/c opening Form FD Ledger sheet and FD receipts by way of cutting and overwriting remained unauthenticated by any authorized officer of the Bank. Thus, monthly interest on those five fixed deposit A/Cs was perpetually paid at a higher contractual rate, beyond the original date of maturity and the Bank has sustained a finical loss of Rs. 64.726 in these five accounts. Details of the FD a/cs and loss of the Bank has been given in the Annexure-I. 2. In seven number of Fixed Deposit A/Cs maintained by you, jointly with Smt. Dolly Datta, original duration of period of 5 years was altered to 10 years by you in the concerned ledger sheets, keeping the FD Receipts and A/C opening forms unchanged. Subsequently, you again restored the periods in the ledger sheets original five years and closed the concerned accounts on 9.8.2003 reckoning with original date of maturity. Subsequently, you again restored the periods in the ledger sheets original five years and closed the concerned accounts on 9.8.2003 reckoning with original date of maturity. Your mala fide intention to defraud the Bank is clearly evident and it was also found that at the time of closing, the excess interest paid on monthly basis has not been recovered and the Bank sustained a financial loss of Rs. 2260 in aggregate. Details of the FD a/cs and loss of the Bank has been indicated in Annexure-II. Your FD a/c No. 382/96 dated 7.10.1996 for Rs. 30.000 and FD a/c No. 158/99 dated 1.3.1999 for Rs. 30.000 have been kept under lien against Cash Credit a/c No. 230400 of M/s. Dolphin Tea Bag, but monthly interest is being credited to your Savings Account, violating the norms of the Bank. You had fraudulently altered the periodicity of both the a/cs in the concerned FD ledger sheet and changed the date of maturity, extending the duration upto 120 months by cutting and overwriting, which were left unauthenticated by any Officer. Both the FD Receipts, liened with the Bank kept in the security folder of Cash Credit A/C of M/s. Dolphin Tea Bag remained unaltered, indicating your mala fide action in getting unlawful enrichment by way of deriving interest beyond maturity date at a contractual higher rate of interest. The details of the FD a/cs and Bank's loss has been indicated in the Annexure-III, please explain under what capacity you had out your above referred FD a/cs under lien and how you are related to M/s. Dolphin Tea Bag. You are also advised to explain whether all the referred 14 Fixed Deposit A/Cs were declared in your Yearly Asset Liability Statement or not. Due to your aforesaid fraudulent manipulation in Bank's record, you have unauthorisedly enriched yourself and gained extra interest of Rs. 86079 in aggregate in all the fourteen FD a/cs causing financial loss to the Bank to that extent. For your personal gain, in a fraudulent manner, you had perpetrated the fraud by alteration/manipulation in FD ledger sheet and other documents. You are hereby advised to explain your above noted unlawful activities along with you clarification regarding the source of fund of Rs. For your personal gain, in a fraudulent manner, you had perpetrated the fraud by alteration/manipulation in FD ledger sheet and other documents. You are hereby advised to explain your above noted unlawful activities along with you clarification regarding the source of fund of Rs. 4.60.000 kept in Fixed Deposit A/Cs, within 15 days from the receipt of this letter, failing which it will be presumed that you have nothing to offer in your defence. In that event, the Bank will proceed against you in terms of rules of the Bank. 2. On receipt of the said letter dated 9.10.2003, the petitioner submitted his explanation by letter dated 23.10.2003. The explanations furnished are as follows : 1. That Sir, information given in annexure-I attached to the above said letter reveals that on 19.9.96 and on 11.10.1996, I have opened 05 numbers of fixed deposit at Dibrugarh Branch for a period of 42 months. However, as far as I remember, immediately thereafter I approached the Bank with the request to extend the period of deposit to 10 years. Accordingly relevant records were modified with the consent of the appropriate authority. It never struck to me to verify whether those were authenticated by Supervisory Officer, as there was no mala fide intention on my part. As such I was allowed to receive monthly interest till July 2003 without raising objection or dispute from the end of Branch authorities. There is no truth in assuming that I have made the alterations just before the original maturity date. Records will reveal that during the period in which I was not attached to Term deposits department, as well as, after my transfer form the Branch, I was paid interest at original rate, although the modifications in ledger sheets, as alleged, were not authenticated till then. 2. On 22.07.1998, I have opened 07 numbers of Fixed Deposits accounts jointly with my mother Smt. Dolly Dutta for a period of 05 years particulars which have been listed in annexure-II of the letter under reference. At my production of Deposit Receipt on maturity, I was paid the amount of deposit with up-to-date interest on 9.8.2003. On that date I was not attached to Dibrugarh Branch and hence there was no scope for me to manipulate any records as alleged in your letter. At my production of Deposit Receipt on maturity, I was paid the amount of deposit with up-to-date interest on 9.8.2003. On that date I was not attached to Dibrugarh Branch and hence there was no scope for me to manipulate any records as alleged in your letter. If through error some amount was paid in excess, the Bank could have easily realised the amount from me by debiting my account. I am perturbed to bring it to your kind notice that in ordinary course of business certain alterations are also made in the accounts of customers. If subsequently it is found that some amount have been paid in excess, it is generally realised from customers. If a customer declines to make good the losses, only then the legal measures are adopted to recover the dues. In instant case, the Bank would have been more justified in notifying me about so called excess payment with direction to make good the revenue leakage instead of bringing allegations against me. However, as I have came to know from your letter now that a portion of interest paid on 14 accounts were over payments not permissible as per rule of the Bank, I hereby irrevocably authorize you to recover such excess amount from any of my other fixed deposits maintained with Bank. 3. That Sir, the Proprietor of M/s. Dolphin Tea Bag, Mr. Ashis Bose is my brother in-law. As additional security to his Cash Credit account I have liened two of my fixed deposits at his request and on family compulsions. As the deposits receipts were at custody of Bank, those could not be rectified at any point of time. Here also if the Bank feels that any over payment had been made, it may recover that amount from my some other fixed deposits maintained with the Bank. That Sir, the amount of Rs. 4.60.000 kept in Fixed Deposit were the inheritance received by my mother as her share from sale proceeds of my grant father's property at Shillong. The amounts have been received in installments and were deposited with the Bank accordingly as per instruction of my mother. These are all separate properties not derived out of my salary income and as such were not included in my Asset & Liability statement. The amounts have been received in installments and were deposited with the Bank accordingly as per instruction of my mother. These are all separate properties not derived out of my salary income and as such were not included in my Asset & Liability statement. Now, in clarifying the facts, I would like to reiterate that all my acts were bona fide actions and there was no element of deceit/fraudulent manipulations on my part, as has been alleged in your letter. I hope you will find my explanation in order and therefore shall drop the allegations so leveled against me in the interest of justice. With kind regards. Debashis Kumar Dutta 3. After the aforesaid developments the Bank Authority made certain adjustments in respect of the alleged excess payment made in favour of the petitioner. The petitioner also accepted such adjustment sending due intimation to the Bank Authorities. 4. When the matter rested thus the petitioner filed the instant writ petition, being apprehensive of placing him under suspension. The petitioner has tried to justify his action in respect of the allegations made against him. It is the case of the petitioner that after the aforesaid adjustment etc., he was under the bona fide impression that the matter had come to an end as the excess interest paid was realised from the petitioner. However, according to the petitioner, he has come to know that the respondents are contemplating to impose penalty on the petitioner by way of departmental proceeding and placing him under suspension. As per the averments made in the writ petition, the petitioner is not opposed to initiation of departmental proceeding against him on the allegations made against him but according to him for that matter there is no necessity to place him under suspension, more so, when the place of working of the petitioner has since been shifted to Guwahati from Dibrugarh where the alleged incident took place. According to the petitioner the conditions precedent to place him under suspension are missing in the instant case. 5. The respondents have filed their affidavit controverting the contentions raised in the writ petition. According to the petitioner the conditions precedent to place him under suspension are missing in the instant case. 5. The respondents have filed their affidavit controverting the contentions raised in the writ petition. It is the stand of the respondents that it is within their exclusive domain and jurisdiction to initiate such proceeding against the petitioner as may be necessary for the interest of the Bank, Apart from controverting the claim of the petitioner that no illegality was committed by him in the transaction in question, it is the stand of the respondents that Regulation 12 of the United Bank of India Officer/Employees (Discipline & Appeal) Regulation 1997 confers power in the competent authority of the Bank to place an officer under suspension pending initiation of any disciplinary action and/or on contemplation of such disciplinary action. According to the respondents the writ petition is premature, unjustified and uncalled for. 6. I have heard Mr. N. Dutta, learned Senior Counsel appearing for the petitioner assisted by Mr. S.K. Medhi, learned Advocate. I have also heard Mr. S. Dutta, learned Counsel appearing for the respondent Bank. Mr. N. Dutta, during his argument tried to justify the action of the petitioner on the basis of which the allegations have been made. His basic thrust of argument is that the alleged irregularities purportedly committed by the petitioner couldn't give rise to any departmental proceeding necessitating placing him under suspension. He argued that the petitioner is prepared to face any departmental proceeding but for that he need not be placed under suspension, more so, when the petitioner has already been transferred from the concerned branch of the Bank. Mr. Dutta placed reliance on the decisions of the Apex Court as reported in (1995) I LLJ 568 SC (State of Orissa v. Bimla Kr. Mahanti and (1999) I LLJ 1094 SC (Cpt. M. Paul Anthony v. Bharat Gold Mines). 7. Mr. S. Dutta, learned Counsel for the Bank, on the other hand argued that the writ petition is premature and that the petitioner by way of initiating the present proceeding cannot debar the disciplinary authority of the Bank to take action against the petitioner and if need be to place him under suspension. Mr. 7. Mr. S. Dutta, learned Counsel for the Bank, on the other hand argued that the writ petition is premature and that the petitioner by way of initiating the present proceeding cannot debar the disciplinary authority of the Bank to take action against the petitioner and if need be to place him under suspension. Mr. Dutta, learned Counsel while reiterating the stand of the Bank in its affidavit placed reliance on the decision of this Court in WP(C) No. 1198/2004 (Hem Kanta Saikia v. United Bank of India and Ors.). 8. The writ petition has been filed on an apprehension of placing the petitioner under suspension. The aforesaid letter dated 9.10.2003 has given rise to such an apprehension. However, the petitioner has conceded that he is not opposed to any departmental proceeding to test the veracity or otherwise of the charges levelled against him but his only grievance is in respect of the purported action of the respondents to place him under suspension while initiating such a departmental proceeding. This Court in the aforesaid case of Hem Kanta Saikia dealt with similar circumstances and same very arguments as in the instant case. The aforesaid decisions of the Apex Court as have been relied upon on behalf of the petitioner were also considered. In that case which was also pertaining to two officers of the same very Bank and who also questioned the decision to place them under suspension on the basis of the aforesaid two decisions of the Apex Court agitated their grievance unsuccessfully before this Court. This Court, in that case placing reliance on the decisions of the Apex Court as reported in (1971) I LLJ 299 SC (Government of India v. Tarak Nath Ghosh) and in (2003) II LLJ 181 SC (Chairman & Managing Director of United Commercial Bank v. P.C. Kakar) rejected the contentions of the two writ petitioners that the decision to place them under suspension was not justified. In that case also as in the instant case the petitioners were transferred to another branch and the contention was raised on behalf of the petitioners that in view of their such transfer there was no question of having any accessibility to the evidence pertaining to the allegations and thus there was no need to place then under suspension. In that case also as in the instant case the petitioners were transferred to another branch and the contention was raised on behalf of the petitioners that in view of their such transfer there was no question of having any accessibility to the evidence pertaining to the allegations and thus there was no need to place then under suspension. However, such a submission did not find favour with the Court in view of the aforesaid decision of the Apex Court in the case Tarak Nath (supra). 9. In the aforesaid case of Hem Kanta Saikia, the two petitioners were already placed under suspension based on preliminary enquiry report and on the allegation of fraud and misappropriation of customer's deposits and having regard to the modus operand pertaining to the same. This Court upon evaluation of the records of the case and analysing the situation in reference to the aforesaid decisions of the Apex Court observed as follows : 18. It is in the above backdrop the action on the part of the respondents placing the petitioners under suspension with the issuance of the impugned orders will have to be judged in reference to the aforesaid decisions of the Apex Court. In both the cases relied on by the learned Counsel for the petitioners the Apex Court has reiterated the well established principles involved in suspension. It reiterated the power and jurisdiction of the employer to place it's employees under suspension. However, it has been observed that it should not be an administrative routine or an automatic order to suspend an employee. It has also been recognized that the authority is also to keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial by the criminal charge. The Apex Court noticed that there are cases where officers have been found to be afflicted by a "suspension syndrome" and the employees are placed under suspension just for nothing. It has also been noticed on perusal of the records that the petitioners have not been placed under suspension for nothing or as an administrative routine affair. It has also not actuated by mala fide, arbitrary or any ulterior purpose. It has also been noticed on perusal of the records that the petitioners have not been placed under suspension for nothing or as an administrative routine affair. It has also not actuated by mala fide, arbitrary or any ulterior purpose. The petitioners have been placed under suspension pursuant to the preliminary enquiry report, upon deliberation of the materials on record and there is nothing to suggest that the petitioners have been placed under suspension under the aforesaid notion of "suspension syndrome" or as an "administrative routine affair". They have been placed under suspension assigning cogent and valid reason. 19. Much was emphasised on the fact of transferring the petitioners from the Branch in question and it was submitted that with the transfer of the petitioners from the Branch in question, there is no necessity to place them under suspension inasmuch as they would not have any access to the documents in the Branch and that there is no possibility of tempering with the evidence in any manner. Merely because the petitioners are away from the Branch in question, it cannot be said that there is no scope of any kind of interference with the fact finding enquiry or towards adducing of evidences, both oral and documentary in the proposed departmental proceeding. This is precisely the reason as to why certain conditions have been imposed relating to the entry of the petitioners in the Branch of the Bank while placing them under suspension. There is another aspect of the matter. At times, as has been observed by the Apex Court in Bimal Kumar Mahanty's case (supra), a delinquent may be required to be placed under suspension by the authority keeping in mind public interest of the impact of the delinquent's continuance in office. In the case of Tarak Nath (supra) the Apex Court has recognized that an officer against whom serious imputations are made should not be allowed to function anywhere before the matter has been finally set at rest after a proper scrutiny and holding of departmental proceeding (emphasis added). 20. In the instant case the whole controversy is relating to the modus operandi of committing fraud and misappropriation of customers deposits for which the bank has already sustained loss. 20. In the instant case the whole controversy is relating to the modus operandi of committing fraud and misappropriation of customers deposits for which the bank has already sustained loss. In the case of Chairman and Managing Director of United Commercial Bank v. P.C. Kakar as reported in (2003) II LLJ 181SC , the Apex Court observed that a Bank officer is required to exercise higher standard of honesty and integrity. Every officer/employee of the Bank is required to take all possible steps to protect the interest of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank Officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. Much has been emphasised by the Apex Court time and again on the role and conduct of the Bank officers who occupy the position of trust. 10. In the instant case the petitioner is yet to be placed under suspension. He has already submitted his explanation trying to justify his action on the basis of which the allegations have been made. The alleged excess payment made in favour of the petitioner has also been recovered as agreed to by the petitioner. The explanations furnished by the petitioner could be a possible view of the matter. However, all these will have to be judged by the competent authority of the Bank to arrive at a decision as to whether any departmental proceeding is required to be initiated against the petitioner and if the decision is in the affirmative as to whether he is at all required to be placed under suspension. Needless to say that a departmental proceeding can be initiated and completed even without placing the person concerned under suspension. It is this kind of a situation which the petitioner sees in his case in view of the allegations made against him and the explanations furnished by him coupled with his transfer from the concerned branch. It is in this context it was argued on behalf of the petitioner that no decision to place him under suspension should be taken with a mechanical approach falling in the line with the notion of "suspension syndrome' or as an '"administrative routine affair". It is in this context it was argued on behalf of the petitioner that no decision to place him under suspension should be taken with a mechanical approach falling in the line with the notion of "suspension syndrome' or as an '"administrative routine affair". However, the competent authority of the Bank will be the best judge to evaluate the situation and then to take a decision in the matter consistently with the principles involved in the matter of placing an officer under suspension. It must not be as a routine affair on the ground of initiation of departmental proceeding against the petitioner, but on the basis of absolute necessity for the same upon evaluation of the attending circumstances, The stage has not yet reached and the writ proceeding has been initiated by the petitioner foreseeing his suspension which according to him will be wholly illogical and illegal. In my considered opinion the competent authority of the Bank must not be divested of its power and jurisdiction to consider the case of the petitioner appropriately having regard to the facts and circumstances involved in the case. 11. In view of the above, the prayer made in the writ petition to restrain the respondents from adversely affecting the services of the petitioner by placing him under suspension cannot be granted. However, this will not mean that the competent authority of the Bank will be oblivious of the aforesaid discussions towards taking a decision in the matter and arrive at the same dispassionately considering the attending circumstances of the case. 12. Subject to the above observations, the writ petition stands dismissed, leaving the parties to bear their own cost.