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2004 DIGILAW 79 (GAU)

Biren Borah v. United Bank of India

2004-02-06

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. Proportionality of the punishment of removal from service imposed on the petitioner is the subject matter of dispute raised in this writ petition. 2. The petitioner while he was serving as Cash-cum-General Clerk at Dhekial Branch of the United Bank of India was charge sheeted by a letter dated May 4, 2001. The allegations levelled against the petitioner are as follows: "You were working as Cash-cum-General Clerk at Bank's Dhekial Branch during the period from November 10, 1992 to June 8, 2000. On April 6, 1998, you had fraudulently credited a sum of Rs.1,00,000.00 to your S.B. Account No. 600 with Dhekial Branch as "by HBL" in connivance with Shri Binay Barman Sangma, Manager of the Branch who authenticated the said entry. You have also entered an identical amount of Rs.1,00,000.00 in the Day's Sub-Cash Book under the head "Demand Loan" without creating any corresponding Loan Account, to suppress your above fraudulent entry, in Branch Day's Accounts, for your personal gain and purpose. You withdrew and misappropriated the said amount on different dates for your personal gains and purposes. On May 4, 1998, you fraudulently credited a sum of Rs.50,000.00 to your S.B. Account No. 600 with Dhekial Branch as "by HBL" through a voucher prepared by you and signed by Shri Binay Barman Sangma, Manager. You have also entered an identical amount of Rs.50,000.00 in the Day's Sub-Cash Book under the "Demand Loan" without creating any corresponding Loan Account, to suppress your above fraudulent entry, for your personal gain and purpose. You withdrew and misappropriated the said amount on different dates for your personal gains and purposes. You have applied for a third time HBL for Rs.2,44,300.00 making a false undated declaration regarding non availment of any HBL earlier from the Bank when you have availed first time HBL for Rs.43,700.00 on June 1, 1984 and second time HBL for Rs.12,000.00 on August 3, 1988 sanctioned by HO. You have applied for a third time HBL for Rs.2,44,300.00 making a false undated declaration regarding non availment of any HBL earlier from the Bank when you have availed first time HBL for Rs.43,700.00 on June 1, 1984 and second time HBL for Rs.12,000.00 on August 3, 1988 sanctioned by HO. On June 16, 1998, you had availed of the so-called above third time HBL for Rs.2,44,300.00 after getting sanctioned by Shri Binay Barman Sangma, Manager of the Branch in complete violation of Bank's rule by creating another HBL A/C in your name and crediting Rs.1,50,000.00 to Demand Loan Account for adjustment of your fraudulent credit entries for Rs.1,00,000.00 and Rs.50,000.00 on April 6, 1998 and May 4, 1998, respectively in the Day's Sub-Cash Book and also depositing Rs.94,300.00 to your S.B. Account No. 600. Thus, for your above acts, Bank has been exposed to a financial loss for Rs.2,44,300.00 along with upto date interest thereon. You are, therefore, charged for having committed gross misconduct which reads as follows: "Doing any act prejudicial to the interest of the Bank or gross negligence or negligence involving or likely to involve the bank in serious loss." Clause 19.5 (j) of the Bipartite Settlement dated October 19, 1966. You are hereby directed to submit your explanation in writing within ten days from receipt of this letter as to why appropriate disciplinary action shall not be initiated against you. Should you fail to submit your explanation in writing as stated above, it will be presumed that you have nothing to offer and in that case the Bank shall reserve the right to take action against you as per rules in force." 3. The petitioner responding to the said charge sheet submitted his reply and the disciplinary authority of the Bank being not satisfied with the reply furnished by the petitioner, conducted a regular enquiry, on completion of the enquiry, the Enquiry officer submitted his report on June 21, 2002 holding the petitioner guilty of the charges. However, in the report it was observed that there was no financial loss to the Bank: 4. The petitioner was furnished with the copy of the enquiry report asking him to submit his representation, which he accordingly did. However, in the report it was observed that there was no financial loss to the Bank: 4. The petitioner was furnished with the copy of the enquiry report asking him to submit his representation, which he accordingly did. Thereafter by the impugned order dated November 25/December 3, 2002, the petitioner was imposed with the penalty of removal from service with superannuation benefits as would have been otherwise due to the petitioner at the appropriate stage after realising all dues. Being aggrieved, the petitioner preferred the departmental appeal on December 21, 2002 and the same having not yielded any result, he approached this Court by filing the instant writ petition. 5. Mr. A Roy, learned counsel appearing for the petitioner confined his arguments only in respect of proportionality of the punishment imposed, neither any plea has been taken in the writ petition nor any argument was advanced in respect of procedural propriety of the enquiry proceeding. Mr. Roy strenuously argued that a major portion of the Bank's loan in question has already been liquidated as per normal procedure of the bank. He further argued that the loan sanctioned to him was utilised for the purpose of building of his own house and there was no suppression of any material fact towards making the application to the bank authority proving for sanctioning of the loan. It was the further submission of Mr. Roy that as would be evident from the enquiry report, the bank did not suffer any financial loss. Finally, it was argued that even if the charges levelled against the petitioner are held to be proved, the penalty of removal from service imposed on the petitioner is grossly disproportionate and shocking to judicial conscience. 6. Mr. Dutta, learned counsel for the respondent Bank referring to the materials on record and the affidavit-in-opposition filed on behalf of the respondents argued that there being no procedural irregularity in conducting the enquiry, the writ Court will not sit on an appeal to re-appreciate the findings recorded by the Enquiry Officer and the Disciplinary Authority. He submitted that the petitioner held a position of trust and integrity and by his conduct the petitioner demonstrated his lack of integrity and trustworthiness. According to Mr. Dutta it is immaterial as to whether the Bank has suffered any loss or not. Referring to the charges levelled against the petitioner, Mr. He submitted that the petitioner held a position of trust and integrity and by his conduct the petitioner demonstrated his lack of integrity and trustworthiness. According to Mr. Dutta it is immaterial as to whether the Bank has suffered any loss or not. Referring to the charges levelled against the petitioner, Mr. Dutta submitted that none of the charges related to any allegation regarding any financial loss suffered by the Bank but was to such likelihood of loss. Finally, he argued that it is not a case of the penalty being grossly disproportionate or shocking to the judicial conscience. Referring to Clause 19.5 and 19.6, Mr. Dutta argued that the Bank is empowered to dismiss an employee from service, if he is found to be guilty of gross misconduct. Thus prescribed penalty of removal from service having been imposed on the petitioner on a proven misconduct, there is no infirmity in the impugned order, Mr. Dutta submitted. 7. Mr. A. Roy, learned counsel for the petitioner referred to two decisions of this Court in support of his submissions. They are as reported in C. Lalliana v. Managing Director, Co-operative Apex Bank Ltd. and Anr. 2002 IV LLJ 1277 (NOC) (Gau) Hindustan Fertilizer Corporation Ltd. v. Nakul Ch. Barkakoti. 8. On the other hand Mr. S. Dutta, learned counsel for the respondents relied upon number of decisions in support of his submissions. They are: i) Union of India v. Mithilesh Singh 2000 (3) GLT 62. ii) Regional Manager, UPSRTC v. Hotilal and Anr. iii) Chairman and Managing Director, United Commercial Bank v. P. C. Kakkar. v) Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik. vi) State of U. P. and Ors. v. Nand Kishore Shukla. vii) Sudhir Vishnu Panvalkar v. Bank of India. 9. I have considered the rival submissions made on behalf of the parties. As noticed above, there is no plea and or assertion on behalf of the petitioner that the disciplinary proceeding is founded on and proceeded with any procedural irregularity. Only submission advanced on behalf of the petitioner is that the Enquiry Officer having recorded that there was no financial loss to the Bank, the penalty of removal from service is grossly disproportionate requiring interference of this Court in exercise of power of judicial review. Only submission advanced on behalf of the petitioner is that the Enquiry Officer having recorded that there was no financial loss to the Bank, the penalty of removal from service is grossly disproportionate requiring interference of this Court in exercise of power of judicial review. The charges levelled against the petitioner were in respect of fraudulent credit of a sum of Rs.1,50,000/- to the S.B. Account of the petitioner without creating any corresponding loan account although the said amounts were entered in the Day's Sub-Cash Book under head "demand loan". Another charge levelled against the petitioner is that he had applied for the third time house building loan for Rs.2,44,300.00 making a false undated declaration regarding non-availment of any house building loan earlier from the bank, although he had already availed house building loan on two occasions. According to the charge levelled against the petitioner, such a course of action on his part was in complete violation of bank's rule. The petitioner thus created another house building loan account in his name and credited Rs.1,50,000/- to demand loan account for adjustment for his fraudulent credit entries for Rs.1,00,000/- and Rs.50,000/-. Thus the allegation against the petitioner was that he had exposed the bank to a financial loss along with upto date interest thereon. On such allegation, the petitioner was charged of having committed gross misconduct of "doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss". The charge was levelled against the petitioner under Clause 19.5(j) of the Bipartite Settlement referred to above. Clause 19.5 classifies "Gross misconduct" under different heads of which Sub-clause (f) has been referred to in the charge sheet. Clause 19.5(j) is quoted below: 19.5. By expression "Gross misconduct" shall be meant any of the following acts and omission on the part of an employee. (j) Doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss. 10. On perusal of the charges, it is evident that none of the charges relates to any financial, loss caused to the bank. While the first two charges speak of fraud committed by the petitioner, the third charge speaks of exposure of the bank to a financial loss along with upto date interest on the amount. 10. On perusal of the charges, it is evident that none of the charges relates to any financial, loss caused to the bank. While the first two charges speak of fraud committed by the petitioner, the third charge speaks of exposure of the bank to a financial loss along with upto date interest on the amount. It is in that context Clause 19.5(j) of the Bipartite Settlement quoted above under which the petitioner was charged. Thus it is immaterial as to whether the fact of any financial loss to the bank was established in the enquiry or not. The enquiry report clearly reveals that all the charges levelled against the petitioner stood proved and in absence of any allegation of any procedural irregularity in conducting the enquiry the writ Court in exercise of its power of judicial review will not sit on an appeal over the findings recorded by the Enquiry Officer on the basis of the evidence on record. This necessarily leads us to the only question and in fact the only ground urged on behalf of the petitioner as to whether the penalty imposed on the petitioner is shockingly disproportionate to the judicial conscience warranting interference with the same. 11. In the case of C. Lalliana (supra) this Court interfered with the punishment of dismissal from service on the basis of the fact involved in that case and no ratio as such has been laid down holding that in all such cases in which the bank does not suffer any loss on account of any irregularity, the penalty of dismissal from service would be disproportionate. 12. In the case of Nakul Ch. Barkakoti (supra) relied upon on behalf of the petitioner, a Division Bench of this Court held the punishment awarded against the writ petitioner to be harsh and shocking. Such a finding was arrived at in consideration of the fact that the charge was not so grave, more particularly when the co-accused had been exonerated. Thus the said decision is also available on the given facts situation and no hard and fast rule has been laid down that in all cases where no financial loss is caused to the bank because of the irregularity committed by the employee, no penalty of removal or dismissal could be awarded to a bank employee. Thus the said decision is also available on the given facts situation and no hard and fast rule has been laid down that in all cases where no financial loss is caused to the bank because of the irregularity committed by the employee, no penalty of removal or dismissal could be awarded to a bank employee. In the said case the Division Bench of this Court noticing the decisions of the Apex Court also held that it would be for the Disciplinary Authority to consider as to what could be the nature of punishment to be imposed based upon the proved misconduct. 13. As per the provision of Clause 19.5 and 19.6 of the Bipartite Settlement, the Disciplinary Authority is empowered to impose the penalty of dismissal from service on proved "gross misconduct" and Sub-clause (j) of Clause 19.5 embraces "gross misconduct" to its fold, being any act prejudicial to the interest of the bank of gross negligence or negligence involving or likely to involve the bank in serious loss. In the departmental proceeding such a charge levelled against the petitioner has been proved and as per Clause 19.6 a bank employee may be awarded the penalty of dismissal from service in case he is found guilty of gross misconduct. Thus the petitioner having been found guilty of gross misconduct, there is nothing wrong in awarding the penalty of removal from service. 14. In the case of Mithilesh Singh (Supra), a Division Bench of this Court after noticing the prescription for imposition of any penalty including one of removal from service on account of unauthorised absence from duty, upheld the order of removal from service. The same is the case here also. If the bank authority is vested with the power and jurisdiction to impose the bank employee with the penalty of removal from service on a proved misconduct which admittedly has been found to be so in respect of the petitioner, no fault could be found on the same. 15. In the case of P.C. Kakkar (supra), the Apex Court has 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. 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. 16. The charge levelled against the petitioner was in respect of the irregularity committed by him towards creation of the loan in question. The Apex Court in the case of K.L. Tripathi (supra) noticing the charge levelled against the appellant therein which is akin to the instant case emphasised that as to whether actual misappropriation had been caused or the bank had been defrauded or not were not relevant in respect of the charges against the appellant. In the said case the Apex Court noticed that the appellant was charged for defrauding the bank. In the said case also as in the instant case, the appellant was charged mainly for the conduct which suggested that he acted improperly and in violation of the principles on which sound banking business should be conducted. The charge against the appellant was that he had acted in violation of the procedure of the bank. Same is the case in hand. The charges levelled against the petitioner are in respect of the procedural impropriety towards creation of the loan in question and thereby exposing the bank to financial loss. It is immaterial as to whether in fact the bank had suffered any financial loss or not which is also not the charge against the petitioner. Same view has been expressed in the case of Nikunja Bihari Patnaik (supra). 17. The Apex Court in the case of Sudhir Vishnu Panvalkar (supra) upholding the order of termination passed against the appellant held that if the bank thought it fit to terminate the services of the appellant on the ground of loss of confidence, such an action could not be said to be unwise or mala fide action. Needless to say that the petitioner being a bank employee held a position of trust and integrity, but by his misconduct attracted the loss of confidence on him by the bank and having regard to that aspect of the matter, the penalty of removal from service has been imposed on the petitioner and I do not find any infirmity in the same. 18. This Court in the case of State Bank of India and Ors. v. P.P. Dutta as reported in 1997(2) GLT 132 dealing with the same contention as in the instant case of not causing any actual loss to the bank held that the law does not require actual loss being caused, it is the dereliction of the duty by an officer of the bank who occupies a position of trust. 19. The Apex Court in the case of Additional District Magistrate v. Prabhakar Chaturvedi and Anr. as reported in held that the penalty of dismissal from service on account of temporary misappropriation of an amount of Rs.21,000/- not to be grossly disproportionate. Even in case of misappropriation, the amount misappropriated may be small or large but it is the act of misappropriation which is relevant. 20. The scope of judicial review in the matter of disciplinary proceeding and imposition of penalty thereof is by now well settled. Judicial review confines itself with the decision making process and not the decision. In the instant case no decision making process has been pointed out so as to call for any judicial review and that too within its limited scope. It is the settled law that the writ Court is not a Court of appeal to go into question of imposition of punishment. It is for the disciplinary authority to consider what would be the nature of punishment to be imposed on a government servant based upon the proved misconduct against the government servant. Its proportionality also cannot be gone into by the Court. The Court while dealing with the quantum of punishment is to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As already observed above, the scope for such interference is very limited and restricted to exceptional cases. It is not only the amount involved but the mental setup, the type of duty performed and similar relevant circumstances which go into decision making process while considering whether punishment is proportionate or disproportionate. Every employee in the bank should strive to see that banking operation or services are rendered in the best interest of the system. Any conduct that damages, destroys, defeats or tends to defeat the trust and confidence reposed on the bank employee is required to be viewed seriously and any sympathy or leniency would be uncalled for. 21. Every employee in the bank should strive to see that banking operation or services are rendered in the best interest of the system. Any conduct that damages, destroys, defeats or tends to defeat the trust and confidence reposed on the bank employee is required to be viewed seriously and any sympathy or leniency would be uncalled for. 21. The petitioner being a Bank employee was necessarily entrusted with the duty of trust and confidence. The Bank necessarily had to repose confidence on him. It is the integrity which matters much in the case of Bank employee and for that matter in case of any service holder. From the charges levelled against the petitioner, it is seen that the petitioner tried to defraud the Bank for his own personal gain and in fact succeeded in his design. It is immaterial as to whether the Bank has suffered any financial loss or not. It is the conduct of the petitioner which mattered most. If the Bank lost confidence on the petitioner, no fault could be found on the same. Mr. Roy, learned counsel for the petitioner during the course of his argument repeatedly and strenuously argued that the petitioner even if held to be guilty of the charges should be given another opportunity to mend himself. It was also argued that the petitioner is entitled to have sympathy of this Court more particularly in view of the fact that the Bank did not suffer any financial loss. I am afraid, there is no scope for any benevolence under Article 226 of the Constitution of India. In exercise of power under Article 226 of the Constitution, the Court cannot depart from law and enter the arena of benevolence. The petitioner has been imposed with the penalty of removal from service on the basis of his proved misconduct and on the basis of the sound principles as reflected in the aforesaid decisions of the Apex Court. He was charged for having committed gross misconduct under Clause 19.5 (j) of the Bipartite Settlement as quoted above. The petitioner has been imposed with the penalty of removal from service on the basis of his proved misconduct and on the basis of the sound principles as reflected in the aforesaid decisions of the Apex Court. He was charged for having committed gross misconduct under Clause 19.5 (j) of the Bipartite Settlement as quoted above. The Disciplinary Authority is empowered to impose any of the prescribed penalties under Clause 19.6 of the said Bipartite Settlement on ground of gross misconduct which embraces to its fold: "Doing any Act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss." If the Disciplinary Authority is empowered i to impose the penalty of removal from service on proved misconduct as noticed above, and the punishment is relatable to the proved misconduct, it will not be open for the petitioner to submit that the penalty imposed is shockingly disproportionate to the misconduct imputed. As a matter of fact as noticed above, such penalty is envisaged on ground of gross misconduct under Clause 19.5(j) for which it has been awarded to the petitioner. Thus it cannot be said that the penalty imposed on the petitioner by the impugned order is shockingly disproportionate warranting interference under limited scope in exercise of power of judicial review under Article 226 of the Constitution of India. 22. After having held that there is no scope for any judicial interference in the matter of imposition of penalty on the petitioner I need not refer to the other decisions cited by Mr. Dutta. The said decisions are the reiteration of the principles already noticed above. 23. From the impugned order of removal from service imposed on the petitioner, it appears that such removal from service is not with forfeiture of superannuation benefits. Although the petitioner has been imposed with the penalty of removal from service, but the same has been so awarded with superannuation benefits as would be due otherwise at the appropriate stage. Thus the disciplinary authority has already dealt with the matter leniently by providing superannuation benefits to the petitioner. No further sympathy or leniency is called for and that too in exercise of power of judicial review in absence of any materials justifying the same. 24. For the foregoing reasons I do not find any merit in the writ petition and the same is dismissed. No further sympathy or leniency is called for and that too in exercise of power of judicial review in absence of any materials justifying the same. 24. For the foregoing reasons I do not find any merit in the writ petition and the same is dismissed. However, there shall be no order as to cost. Petition dismissed.