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2006 DIGILAW 834 (GAU)

S. Lokendrajit Singh v. United Bank of India

2006-09-05

T.NANDAKUMAR SINGH

body2006
JUDGMENT T.N.K. Singh, J. 1. Heard Mr. K.N. Choudhury, learned Sr. Advocate assisted by Mr. S. Shyam, learned Advocate appearing on behalf of the Petitioner and Mr. S. Dutta, learned Sr. Advocate appearing for the Respondents-Bank. 2. Factual Matrix a) The Petitioner was initially appointed as Daftry-cum-Cash Peon in the United Bank of India (for short 'Bank'). Thereafter by an order issued under Memo No. ZO/PD/ROM/97-98 dated 01.12.1997 Petitioner was promoted to the clerical cadre on the subordinate grade and posted as Cash-cum-General Clerk at the Lalacherra Branch of the Bank. At the relevant time, Lalacherra Branch was a very small branch comprising of only 3(three) staffs, i.e. (1) one Manager; (2) Cash-cum-General Clerk and (3) a part time sweeper. It is said that being a very small branch comprising limited number of staffs, there was a very close and co-ordinate relationship between staff members of the Branch of the Bank and used to share a high degree of mutual trust and confidence amongst themselves. b) It is said that there was a domestic crisis after the Petitioner got married to a girl against the wishes of the parents and as a result thereof he was deprived of parental support during the post-marriage period. At the relevant point of time the Manager in-charge of the said Lalacherra Branch was one Shri Ashit Kumar Paul who used to act as a guardian, friend and philosopher to the Petitioner. As the Petitioner was facing the acute financial crisis, he had approached several personal sources for the purpose of securing a financial loan to meet his immediate financial crisis. Having failed to his attempt for securing financial loan, the Petitioner made personal requests to Shri Ashit Kumar Paul, the then Branch Manager of the said Lalacherra Branch to sanction a personal loan so as to enable him to overcome the financial crisis. It is alleged that the then Manager in-charge of Lalacherra Branch at his personal level advised the Petitioner to use the cash of the Bank and replenish the same at the earliest so that the interest of the Bank does not suffer in any manner. In such circumstances, it is alleged that the Petitioner had withdrawn some money from the cash available with the Bank without any appropriate authority and used the said amount for getting over his financial problems. In such circumstances, it is alleged that the Petitioner had withdrawn some money from the cash available with the Bank without any appropriate authority and used the said amount for getting over his financial problems. However, the Petitioner defaulted in replenishing the said amount at the earliest Ultimately the matter of withdrawal of the money by the Petitioner without any authority had come to the notice of the higher authority. Accordingly, necessary instructions were issued for recovering the said money from the Petitioner. Petitioner after realizing the serious mistake committed by him he had deposited the entire amount of money amounting to Rs. 1,70,000/-(Rupees one lakh seventy thousand) with the Bank after selling out a substantial part of the landed property of his father, Shri Lakshmi Babu Singha. It is said that on 19.03.1999, the Petitioner repaid the said amount of Rs. 1,70,000/- (Rupees one lakh seventy thousand) with interest which comes to an amount of Rs. 1,95,000/- (rupees one lakh and ninety-five thousand) on 19.03.1999. c) After the whole amount along with the interest, i.e. Rs. 1,95, 000/- (Rupees one Lakh ninety five thousand), had been deposited by the Petitioner, the Respondent authority further asked the Petitioner to deposit further amount of Rs. 9,872/- (Rupees nine thousand eight hundred and seventy two) being the interest calculated at the commercial rate of 18% per annum on the aforesaid amount of Rs. 1,95,000/- (Rupees one Lakh ninety five thousand) for the period from 25.08.1998 to 19.03.1999. It is also said that the said amount of Rs. 9,872/- (Rupees nine thousand eight hundred and seventy two) was also deposited by the Petitioner. d) Even after depositing the whole amount of money the authorities issued the memo of charges dated 19.07.2000 for holding the disciplinary proceedings against him. The charges were that 'during the period from 25.08.98 to 05.03.99, the Petitioner had withdrawn a sum of Rs. 1,70,000/- (Rupees one lakh seventy thousand) by making fake entries in the cash payment register." On 07.08.2000 the Petitioner had submitted his written reply to the aforesaid charges stating, inter alia, that he had committed the mistake unknowingly which he shall not repeat in future and also that he had deposited the amount alongwith interest to the Bank on 19.03.99. 1,70,000/- (Rupees one lakh seventy thousand) by making fake entries in the cash payment register." On 07.08.2000 the Petitioner had submitted his written reply to the aforesaid charges stating, inter alia, that he had committed the mistake unknowingly which he shall not repeat in future and also that he had deposited the amount alongwith interest to the Bank on 19.03.99. The authority, however, did not accept the reply given by the Petitioner and by an order issued under memo No. CRP/ADMN/ENQ/LCC/1544/4106/2000 dated 19.10.2000 a departmental enquiry was initiated against the Petitioner, Shri S. Lokendrajit Singha wherein one Shri Ranjit Sankar Roy, Manager, Badarpur Branch was appointed as Enquiry Officer and Shri Bijit Kumar Dasgupta, Dy. Manager, Karimganj Branch was appointed as Presenting Officer. Later on, one Shri Chapalendu Das, Manager, UBI, Meherour Branch was appointed as Enquiry Officer and one Shri Gitendra Bhattacharjee, Manager, UBI, Udarbond Branch as Presenting Officer to present the Bank's case in the departmental enquiry. e) After completing the departmental enquiry against the Petitioner for the said charges, the Enquiry Officer submitted his report dated 08.10.2002 with the findings that the charges against the Petitioner for defaulting to the extend of a sum of Rs. 1,70,000/- (Rupees One Lakh seventy thousand) is established in terms of Clause 19.5(J) of the Bipartite Settlement dated 10.10.1966 which reads as: 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. f) The said enquiry report dated 08.10.2002 was forwarded to the Petitioner by a letter issued under memo No. CRO/ADMN/VIZ/ENQ/LCC/2002 dated 23.10.2002 whereby the Petitioner was asked to make written submission against the same within 7 days from the date of receipt of the letter. Accordingly the Petitioner submitted his written submission/representation against the enquiry report dated 08.10.2002 before the Regional Manager and the Disciplinary Authority, Cachar Region on 01.11.2002. The Disciplinary Authority by completely neglecting the submissions of the writ Petitioner as well as the fact of depositing the whole amount of money withdrawn by the Petitioner with interest to the Bank on 19.03.1999 had issued letter/order under Memo No. CRO/ADM/VIG/LLC/154/24/5403/2002-03 dated 04.12.2002 confirming the proposed punishment of dismissal of the Petitioner from service without notice. The Disciplinary Authority by completely neglecting the submissions of the writ Petitioner as well as the fact of depositing the whole amount of money withdrawn by the Petitioner with interest to the Bank on 19.03.1999 had issued letter/order under Memo No. CRO/ADM/VIG/LLC/154/24/5403/2002-03 dated 04.12.2002 confirming the proposed punishment of dismissal of the Petitioner from service without notice. g) Being aggrieved by the order/letter dated 04.12.2002, the Petitioner filed an appeal on 02.01.2003 under the provisions of Clause 19.14 of the Bipartite Agreement before the Respondent No. 2 who is the appellate authority. In the said Memo of appeal, the Petitioner had indicated in details the facts and circumstances that lead to the commission of the aforesaid act and further had drawn the attention of the Respondent No. 2 to the fact that the defaulted amount together with interest at commercial rate of 18% per annum having been already recovered from the Petitioner. In the said memo of appeal, the present Petitioner specifically states that the present case was not the case wherein any serious loss was caused to the Bank. In view of the peculiar factual circumstances, the case of the Petitioner may be considered sympathetically and reviewed the order dated 04.12.2002 terminating the services of the Petitioner without notice. It is said that the said appeal was not disposed of and it has been kept pending. Having no alternative the Petitioner filed the present writ petition assailing the order/letter dated 04.12.2002 imposing penalty of dismissal from service to the Petitioner. 3. The main thrust of the Petitioner's case in the present writ petition for assailing the impugned order/letter dated 04.12.2002 is the imposition of punishment by dismissal from service is shockingly disproportionate to the mistakes/misconduct committed by the Petitioner inasmuch as the Petitioner had already deposited the whole defaulted amount along with interest as a result thereof there is absolutely no loss to the Bank. In other words, the case of the Petitioner in the present writ petition is that lesser punishment other than the extreme punishment of dismissal from service would have been imposed to the Petitioner in the peculiar facts and circumstances discussed above. 4. In other words, the case of the Petitioner in the present writ petition is that lesser punishment other than the extreme punishment of dismissal from service would have been imposed to the Petitioner in the peculiar facts and circumstances discussed above. 4. The Respondents filed their affidavit-in-opposition stating that the punishment of dismissal from service imposed to the Petitioner under the impugned order letter dated 04.12.2002 is not disproportionate and also that the punishment or removal of service imposed to the Petitioner is the result of loss of confidence in the Petitioner by the Bank in the facts and circumstances of the case inasmuch as the Petitioner being the employee of the Bank should honest and discharge his duty with utmost integrity, diligent, devotion and to do nothing which is unbecoming of an employee. The Respondents also stated that the good conduct and discipline are inseparable form the functioning of every officer/employee of the Bank. 5. The scope of interference to the quantum of punishment has been the subject matter of various decision of the Apex Court. It is too late for the day to re-examine the scope of interference of the quantum of punishment and Justice Arijit Pasayat (Judge of the Apex Court) in a number of classic judgments had settled the scope of interference of the quantum of punishment in exercising the power for judicial review of the superior Courts. 6. Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service (Called CCSU case) summarized the principle of judicial review of administrative action as based upon one or the other of the following, viz, legality, procedural, irregularity and irrationality. He, however, opined that "Proportionality" was a future possibility." According to my opinion, Lord Diplock for the first time opened the window of "proportionality" in the judicial review of administrative action. Now, the Apex Court in a catena of cases held that "proportionality" is one of the basis for judicial review of the quantum of punishment imposed on the delinquent/employee by the disciplinary authority. While exercising the power of judicial review of the quantum of punishment basing on "proportionality" the Court is applying Wednesbury Principle as secondary reviewing authority and also the Court will not apply "proportionality" as a primary reviewing Court. Therefore, the Court could exercise power of secondary review based only on Wednesbury Principle. While exercising the power of judicial review of the quantum of punishment basing on "proportionality" the Court is applying Wednesbury Principle as secondary reviewing authority and also the Court will not apply "proportionality" as a primary reviewing Court. Therefore, the Court could exercise power of secondary review based only on Wednesbury Principle. Lord Bridge explained the primary and secondary review in Brind case (1991)1 AC 696 : (1991) 1 All ER 720 : (1991) 2 WLR 588 (HL) as follows: The primary judgement as to whether the peculiar competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment. The Constitution Bench E.P. Royappa v. State of Tamil Nadu, (1974)4 SCC 3 : 1974 SCC (L&S) 165 held that where a punishment in disciplinary cases are challenged, question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury Test. The Apex Court in Union of India v. G. Ganayutham (1997) SCC (L&S) 1806 had summed up position relating to "proportionality" in paras-31 and 32 which read as follows: 31. The current position of proportionality in administrative law in England and India can be summarized as follows: (1) To Judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was done on which no sensible decision maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matter had not been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go to the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. The Court would also consider whether the decision was absurd or perverse. The Court would not however go to the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 A C 374 principles. (3) (a) As per Bugdaycay, Brind and smith as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3) (b) If the Convention is incorporated in England making available die principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4) (a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Court/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4) (b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14, 32. Finally, we come to the present case. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14, 32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of the "proportionality". There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to 'irrationality', there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in 'outrageous' defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain' Ranjit Thakur. 7. The Apex Court in Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar, (2003) 4 SCC 364 held that unless the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the Court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed para-12 of the judgment in Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar(2003) SCC 364 (supra) is quoted as under: 12 To put it differently, unless the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the Court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty. Again, the Apex Court in Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 had discussed the scope of judicial review of the quantum of punishment on the basis of "proportionality", paras-21, 22 and 23 of the judgment in Canara Bank v. V.K. Awasthy (supra) are quoted as under: 21. Again, the Apex Court in Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 had discussed the scope of judicial review of the quantum of punishment on the basis of "proportionality", paras-21, 22 and 23 of the judgment in Canara Bank v. V.K. Awasthy (supra) are quoted as under: 21. Coming to the question whether the punishment awarded was disproportionate, it is to be noted that the various allegations as laid in the departmental proceedings reveal that several acts of misconduct unbecoming of a bank official were committed by the Respondent. 22. It is to be noted that the detailed charge-sheets were served on the Respondent employee who not only submitted written reply, but also participated in the proceedings. His explanations were considered and the inquiry officer held the charges to have been amply proved. He recommended dismissal from service. The same was accepted by the disciplinary authority. The proved charges clearly established that the Respondent employee failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the interest of the Bank. In the appeal before the prescribed Appellate Authority, the findings of the inquiry officer were challenged. The Appellate Authority after analyzing the materials on record found no substance in the appeal. 23. The scope of interference with the quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter. 8. The Apex Court in Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar and Batch, (2003) 4 SCC 364 held: 14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests 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. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly as bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court. 9. The Apex Court in Sudhir Vishnu Panvalkar v. Bank of India, (1997) 6 SCC 271 had discussed the termination of service of the Bank employees on the ground of loss of confidence in him and held that termination of service of the employee on the ground of loss of confidence cannot be said to be mala fide and punishment of imposing termination cannot be said to be shockingly disproportionate. Para - of SCC in Sudhir Vishnu Panvalkar (Supra) reads as under: 5. Mr. Raj Birbal, learned senior Advocate appearing for the Bank, contested this contention and urged that the termination order was the simpliciter termination without being influenced by the criminal proceedings and there was no reason for the Appellant to wait until the disposal of the criminal proceedings. Delay of three and half years in the event of reinstatement involves financial implications relating to back wages. On perusal of judgments of the learned Single Judge as well as the Division Bench of this issue, we are of the considered view that having regard to the facts and circumstances of the present case, the Division Bench was right in holding that the writ petition suffered from the vice of delay and laches. At this stage, it needs, it needs to be stated mat the termination order was a simpliciter termination. However, the Appellant insisted for the reasons for his termination and, therefore, the Bani was constrained to inform the Appellant that the termination was resorted to because of loss of confidence. At this stage, it needs, it needs to be stated mat the termination order was a simpliciter termination. However, the Appellant insisted for the reasons for his termination and, therefore, the Bani was constrained to inform the Appellant that the termination was resorted to because of loss of confidence. It also needs to be emphasized that the Appellant was a Grade III Officer in the Bank who Was required to deal with the customers and, therefore, 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. We, therefore, find no illegality in upholding the finding of the Division Bench that the writ petition filed by the Appellant suffered from the vice of delay and laches. 10. The Apex Court in Addl. District Magistrate (City) Agra v. Prabhakar Chaturvedi and Anr., (1996) 2 SCC 12 held that imposing of termination of service to the employee after he admitted the charge of temporarily misappropriated amount of Rs. 21,000/- (Rupees twenty one thousand) for a couple of month will not grossly disproportionate. 11. Having regards the above discussions and also in the peculiar facts and circumstances of the case, this Court is of the considered view that the submissions of the learned Counsel for the Respondents-bank that penalty of dismissal from service imposed to the Petitioner under the impugned order/letter dated 04.12.2002 is not shockingly disproportionate is acceptable. Accordingly the case of the Petitioner for interference with the impugned order/letter dated 04.12.2002 by this Court on the only ground that punishment of termination imposed to the Petitioner is shockingly disproportionate holds little water. 12. The writ petition is devoid of merit and accordingly dismissed. Parties are to bear their own costs. Petition dismissed