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Patna High Court · body

2008 DIGILAW 1557 (PAT)

Rama Shankar Singh Raman v. Union Bank Of India

2008-10-22

AJAY KUMAR TRIPATHI

body2008
Judgment 1. Petitioner, an employee of the respondent- Union Bank of India wants quashing of the Central Offices letter No. 541 dated 24.1.2005, contained in Annexure-C to the supplementary counter affidavit filed on behalf of the respondents as well the consequential Inter Office letter No. 144/ 04 dated 3.2.2005, contained in Annexure- 16, by virtue of which his claim for refund of Rs.1.50 Lacs which was deposited by him under the circumstances explained in the writ application has been rejected by the respondents in a cryptic manner without any authority of law or rules. 2. According to the petitioner, he is an Ex-Airman who subsequently decided to join the service of respondent-Union Bank of India. He joined the bank on 11.11.1978. On 3.10.2002 there was not enough money available in the Jawaharlal Nehru Medical College Extension Counter at Bhagalpur to make payment of salary etc. to the employees of the Medical College. The petitioner therefore was deputed to bring Rs.1.50 Lacs in cash from the Bhagalpur Main Branch by the Branch Manager in question. The letter saddling him this responsibility is evident from annexure-1 to the writ application. Since no other hand or conveyance was provided the petitioner used his motorcycle to go and collect cash from the Main Branch. Petitioner reached the Main Branch, collected Rs.1.5 Lacs in cash, placed the cash in a bag made of cloth, put it in the dickey of the motorcycle and locked it before his return to the Extension Counter. On his return journey at about 12.30 PM the petitioner was waylaid by four criminals who surrounded him on two motorcycles. At the point of a gun the criminals broke open the lock of the dickey and took away cash. Petitioner shell-shocked with the incident immediately informed the Branch Manager about the above incident as well as the Main Branch from where the cash was collected. Subsequently based on his fardbeyan Barari P.S. Case No. 654 of 2002 was instituted under Section 392 of the Indian Penal Code against unknown persons. It is being recorded that this case was investigated by the police but ultimately a final form was submitted stating that the case was true but no clue. In other words, there was no element of mischief or contributory negligence on the part of the petitioner. 3. It is being recorded that this case was investigated by the police but ultimately a final form was submitted stating that the case was true but no clue. In other words, there was no element of mischief or contributory negligence on the part of the petitioner. 3. The petitioner further states in the writ application that after launching of the police case, the Branch Manager talked to the Regional Manager, Patna and on the direction of the regional office he was directed to deposit the above sum of Rs. 1.5 Lacs immediately otherwise it would result in cash shortage and if there would be no cash adjustment he would be put under suspension. Petitioner, therefore, in the above circumstances, made a request with one of the customers of the bank to lend him the above money as an S.O.S. measure. The customer namely, Dr. Akshay Kumar Mishra obliged the petitioner by issuing two cheques of Rs. 1 Lac and 50,000/- respectively which was deposited with the branch and accounting for the day at the time of closing was done. Petitioner has brought evidence of such deposit on record as Annexure-3. 4. On the very next day of the incident i.e. 4.2.2002 the Incharge of the Extension Counter informed the Regional Security Officer at Patna about the incident and the background to the crime in question. Other senior officials were also informed about the facts. All the communications on record, contained in Annexure-9 series, indicate that the petitioner was forced to deposit this amount in the circumstances stated above, on the day of the incident itself. On the version of the petitioner taken by the Security Officer and the various correspondences including one contained in Annexure-9 would show that a recommendation was made that keeping in mind the crime in question as well as the circumstances under which the petitioner was made to deposit a sum of Rs.1.5 Lacs the authority should consider the claim of the petitioner for refund of the amount sympathetically. Even the Assistant General Manager in his communication on the issue with the Head Office at Mumbai recommended refund of Rs.1.5 Lacs to the petitioner. The above recommendation has been brought on record by the petitioner as Annexure-10. 5. The case of the petitioner is that respondent-Bank had taken a Bankers Indemnity Policy from the United Insurance Company Ltd. which was valid from 1.4.2002 to 31.3.2003. The above recommendation has been brought on record by the petitioner as Annexure-10. 5. The case of the petitioner is that respondent-Bank had taken a Bankers Indemnity Policy from the United Insurance Company Ltd. which was valid from 1.4.2002 to 31.3.2003. Loss of cash in transit in such circumstances was covered by the said policy. In other words, it is not a case where loss of money would not be recovered or claimed from the Insurance Company when the case of robbery committed was found to be true. Petitioner has brought a copy of the Insurance Policy on record as Annexure-11. To reinforce the argument and claim for refund of the money the petitioner has also brought extract of guidelines and the precautions to be taken in cash remittance. Annexure-B/1 has relevance in this regard. Petitioner states that in terms of column (g) the mode of transfer of cash remittance upto 2 lacs is by scooter/motorcycle and no escort or guard is to be provided. Since in the present case the petitioner was authorized to collect a sum of Rs. 1.50 Lacs, it was within his right to use a motorcycle and it is not the case of the bank that any security guard or any person was provided by the branch for performing this duty. Petitioner has also brought a circular dated 5th August, 2003 contained in Annexuxre-14 which only reiterates that the bank has enhanced cash remittance limits and the precaution which need be or need not be taken in case of cash remittance. Submission of the petitioner, therefore, is that the petitioner had performed his official duty in a prescribed manner and if he was robbed on the way, the bank had a remedy of claiming loss of cash in transit and when no negligence was shown by the petitioner in performance of his duty, the petitioner was entitled to the money which he was forced to deposit on the day of incident which was 3.10.2002. The petitioner in the above background insisted for the refund of the money which was borrowed by him and deposited with the branch. But the authorities in their wisdom by virtue of communication dated 24th January, 2005 (Annexure-C) issued from the Head Office and the letter dated 3.2.2005 communicated by the Branch stated that the request of the petitioner for refund of the deposited amount cannot be acceded to. But the authorities in their wisdom by virtue of communication dated 24th January, 2005 (Annexure-C) issued from the Head Office and the letter dated 3.2.2005 communicated by the Branch stated that the request of the petitioner for refund of the deposited amount cannot be acceded to. It is in this background that the present writ application has been filed challenging the communications in question. 6. Learned counsel for the petitioner has summed up his argument by stating that loss of money caused to the bank of Rs. 1.50 Lacs was not due to any negligence or misconduct on his part. Since he was duly authorized and was entrusted to do the job in question but to his misfortune he became the victim of crime and the circumstances under which he was forced to deposit the said amount with the branch entities him to claim the refund. Since the bank was adequately protected by an insurance policy, if due to sheer negligence or complacent attitude of the respondents they did not lodge any claim with the insurance authorities he cannot be forced to compensate the bank or be made to suffer in this manner. 7. Counter affidavit on behalf of the respondent-Bank came to be filed. Stand has been taken in the counter affidavit that the petitioner had himself deposited the above amount to avoid any serious action being taken against him which might have been initiated by way of disciplinary proceeding and after deposit of money no such action has been taken against the petitioner, he does not have a right to claim refund. They have also tried to justify the decision by shifting the burden and blame on the petitioner by saying that petitioner was an ex-Airman and he was able person and he should have put up resistance. They also find fault by stating that the petitioner instead of rushing to Branch and informing the incident should have rushed to the Police Station which might have helped in solving the crime. They have also taken a stand that the deposit of money by the petitioner was a voluntarily act and, therefore, it is not open to him to claim the refund. They have brought on record certain circulars with regard to mode and modality of cash transfer, annexed to the counter affidavit. 8. They have also taken a stand that the deposit of money by the petitioner was a voluntarily act and, therefore, it is not open to him to claim the refund. They have brought on record certain circulars with regard to mode and modality of cash transfer, annexed to the counter affidavit. 8. When the matter was heard initially the court put a question to learned Senior Counsel appearing on behalf of the bank whether there was any rule or circular which entitles the bank to recover such kind of money if an employee was a victim of robbery or was waylaid by criminals in performance of his official duties. Adjournment was taken on the ground that there was no such circular readily available but may be with the help of headquarters something can be brought on record. Time in this regard was granted for the first time on 7.8.2008 but no such circular or rule has been brought on record. Yet another opportunity thereafter was granted to the respondents on 28.8.2008. Even on that date no categorical circular or rule was produced but a supplementary affidavit dated 15.9.2008 was filed where in they quoted certain provisions of Bipartite Settlement in relation to disciplinary action and procedure. They have quoted the provisions as to what amounts to gross misconduct or minor misconduct and the consequences of such conduct by an employee. They have tried to build up a case that loss of money of the bank was a case of misconduct and therefore, the money appropriated by the bank deposited by the petitioner is part and parcel of the punishment imposed upon him. But when pointedly asked whether the bank at any point of time had issued a charge- sheet or heid an enquiry of the kind with regard to the conduct of the petitioner there was stony silence on this issue. 9. The issue therefore before the Court is whether the claim made by the petitioner for refund of the money deposited by him in the above circumstances and refusal of the respondents to refund the same has any legal sanction and whether the action of the respondents ought to be decided on the touchstone of Article 14 which is arbitrariness in decision making process. 10. There is no dispute on the basic facts and the circumstances under which the petitioner was made to deposit Rs. 10. There is no dispute on the basic facts and the circumstances under which the petitioner was made to deposit Rs. 1.50 Lacs with the branch in question. Though an effort has been made by respondents in the counter affidavit to show that the deposit of the money in question by the petitioner is voluntarily but the above fact is not borne out from the facts and communications made by the official respondents at various levels in this regard. There is material to show that the petitioner was asked if not compelled to deposit the said money on the date so that the cash balance at the end of the day could be worked out and the accounts settled. It is also a fact that recommendations had been made to the head office in favour of the petitioner to consider refund of his deposit but what considerations went in the mind of the decision maker at the head office or what was the reason for rejection of the claim of the petitioner as per Annexure-16 cannot be made out by a reading of both Annexures- 16 and C. These are cryptic orders sans the reasons behind it. 11. The reasons have been sought to be provided in the counter affidavit or the supplementary affidavit filed thereafter. The reasons cannot be supplemented or planted by way of affidavits as has been laid down years ago by the Hon ble Supreme Court in the much celebrated decision of Mohinder Singh Gills case, (1978)1 SCC 405 . 12. Not only this, the decision of the respondents to refuse the claim of refund of the petitioner is not supported by any rule or regulation in this regard. Despite indulgence shown to the respondents they have not come out with a clear and categorical circular, administrative or statutory, which will entitle them to compensate themselves with the kind of deposit which the petitioner was compelled to make after he was a victim in performance of his official duties. The court also finds it very strange on the silence of the respondents with regard to the fact as to why no steps were taken by them for claiming the loss suffered by them in terms of policy contained in Annexure-11 and as to why they be permitted now to take a premium over their complacency. 13. The court also finds it very strange on the silence of the respondents with regard to the fact as to why no steps were taken by them for claiming the loss suffered by them in terms of policy contained in Annexure-11 and as to why they be permitted now to take a premium over their complacency. 13. In absence of adequate explanation both in the counter affidavit as well as submissions in this regard the Court comes to a considered decision that both the orders dated 3.2.2005 (Annexure-16) and 24.1.2005 (Annexure-C to the supplementary counter affidavit dated 4.8.2008) are hereby fit to be interfered with and they both stand quashed. A direction is issued upon the respondents that they shall take steps for refund of Rs.1.50 Lacs which was deposited by the petitioner after borrowing from a customer of the bank to him forthwith. The court is also of the opinion that the petitioner would be emitted to payment of interest which would be the current rate available to savings account. This is by way of compensation to the petitioner as the Court is of the opinion that the respondents have failed to justify their decision and action of not entertaining the claim of the petitioner for refund. 14. The writ application stands allowed with the above direction and relief.