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2009 DIGILAW 180 (CAL)

Nishith Kumar Biswas v. Disciplinary Authority Assistant General Manager (CCB) Bank of Baroda

2009-03-05

D.P.SENGUPTA, DEBASISH KAR GUPTA

body2009
Judgment : DEBASISH KAR GUPTA, J. (1) This appeal is directed against the judgment and order dated May 23, 2003, passed in the writ application being W.P. No.14823(W) of 2001. By the aforesaid judgment and order the above writ application was dismissed. (2) The facts of the case in a nutshell, as revealed from the above writ application, were as follows:- A charge-sheet dated August 2, 1999, was issued against the appellant, who was working for gain as cash collector, under the Bank of Baroda, Beliaghata Branch. The appellant submitted his reply to the above charge-sheet denying all the charges. An enquiry proceeding was conducted against the appellant and the enquiry officer submitted his enquiry report dated April 28, 2000 to the respondent no.1, being the Disciplinary Authority, holding that the appellant inducted fake notes in the banks cash in course of his duty on March 11, 1999. The appellant submitted his representation to the above enquiry report on June 27, 2000. By an order of punishment dated January 16, 2001, the respondent no.1 dismissed the appellant from the services of the Bank of Baroda with effect from the date of order treating the period of suspension as period not spent on duty but entitling the appellant to increments and other monetary benefits falling due during the period of suspension. The appellant preferred a statutory appeal before the respondent No.2 against the above order of punishment dated January 16, 2001. The respondent no.2 dismissed the above appeal by an order dated March 12, 2001. The appellant filed the writ application which was dismissed by the judgment and order dated May 23, 2005. While dismissing the above writ application, a learned Single Judge of this Court noted that the Bank of Baroda, which was a necessary party, had not been impleaded as respondent to the writ proceeding. For the ends of justice, the court examined the merits of the writ application notwithstanding the omission of necessary and proper party but had not been able to sustain the challenge to the impugned orders. (3) It is submitted on behalf of the appellant that the learned Single Judge was in error in not setting aside the enquiry proceeding. According to the appellants the copy of the letter issued by the customer, if any, as also the circular/guidelines for detecting fake notes were not supplied to him by the enquiry officer. (3) It is submitted on behalf of the appellant that the learned Single Judge was in error in not setting aside the enquiry proceeding. According to the appellants the copy of the letter issued by the customer, if any, as also the circular/guidelines for detecting fake notes were not supplied to him by the enquiry officer. The enquiry officer allegedly failed to call one Mr. Gopal Kumar Bubna, partner of M/s. Gaurav Expocom Ltd. and another Mr. Jay Dulal Sinha Ray, the then Senior Manager of Bank of Baroda, Beliaghata Branch, as witness on the prayer of the appellant. With regard to the enquiry report it is submitted on behalf of the appellant that the learned Single Judge did not take into consideration the fact that no reason was assigned by the enquiry officer to hold that the charge Nos.3,4,5 and 6 of the charge-sheet under reference had been proved. The enquiry officer was allegedly wrong in holding that the onus to dislodge the charge no.7 was upon the appellant. According to the appellant charge No.8 was held to be proved without any basis. (4) According to the appellant, the Learned Single Judge was in error in not holding that the order of punishment was non-speaking one. It is further submitted on behalf of the appellants that the Ld. Single Judge neglected to consider that though arguable points had been raised in the statutory appeal, the respondent no.1 dealt with those points mechanically. Relying upon the decisions of Mr. V. Bijlani Vs. Union of India, reported in (2006) 5 SCC 88 , Union of India Vs. Sri Sankar Prosad Ghosh, reported in 2008(118) FLR 170 and Anil Kumar Vs. Presiding Officer, reported in (1985) 3 SCC 378 , it is submitted on behalf of the appellant that the enquiry report under reference is liable to be set aside on the grounds of absence of reasons to arrive at a conclusion and shifting of burden of proof erroneously. The decisions of General Manager, Loktak Power Station, Manipur Vs. Md. Siraj Ahmad, reported in 2004(3) SLR 471, Biswanath Hazra Vs. State of West Bengal, reported in 2007(3) CHN 52, Union of India Vs. H.C. Goel, reported in AIR 1964 SC 364 and Managing Director, ECIL, Hyderabad Vs. The decisions of General Manager, Loktak Power Station, Manipur Vs. Md. Siraj Ahmad, reported in 2004(3) SLR 471, Biswanath Hazra Vs. State of West Bengal, reported in 2007(3) CHN 52, Union of India Vs. H.C. Goel, reported in AIR 1964 SC 364 and Managing Director, ECIL, Hyderabad Vs. B. Karunakar, reported in (1993) 4 SCC 725, are relied upon to submit that unless reasons are assigned dealing with the points raised in the representation of the delinquent employee, the punishment imposed upon him cannot be sustained in law. The decisions of Junas Kerketta Vs. Union of India, reported in 2008(4) SLR 573 and Director (Marketing), Indian Oil Corporation Ltd., reported in 2006 AIR SCW 2829, are relied upon to submit that the order passed by the appellate authority is liable to be set aside due to non-application of mind. Relying upon the decisions of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai, reported in (1998) 8 SCC 1 and M/s. Popcorn Entertainment Vs. City Industrial Development Corpn. it is submitted on behalf of the appellant that the Ld. Single Judge dismissed the writ application in deviation from the settled principles of law that in this case the violation of the principles of natural justice was agitated and, therefore, the same should not have been dismissed on the ground of availability of alternative remedy. (5) On the other hand, it is submitted on behalf of the respondents that enquiry officer arrived at a conclusion that the charge of inserting fake notes of 500 rupees denomination had been proved on the basis of the evidence of head-cashier (M.W.1) concerned. It is also submitted that from the evidence of the above head-cashier (M.W.1) it was proved that he received the ninety pieces of Rs.500/- denomination fake notes under reference from the appellant after the same had been stitched under the supervision of the appellant. Drawing our attention to the evidence of the joint Branch Manager (M.W) it is submitted on behalf of the respondents that Ultra Violet Ray Machine was available at the receiving counter of the bank and there was no guideline/circular for detection of fake notes. Further, it was proved from the evidence of the above witness that the appellant had been working in the cash department since 1994. Further, it was proved from the evidence of the above witness that the appellant had been working in the cash department since 1994. It is submitted on behalf of the respondents that the allegations of preparing enquiry report without any basis and dismissing the appellant by passing an order without assigning any reason are misconceived. It is further submitted on behalf of the respondents that the appellate authority agreed with the order passed by the disciplinary authority and, therefore, assigning of some reasons made that order valid in the eye of law. (6) Relying upon the decisions of Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi, reported in AIR 1977 SC 1710, it is submitted on behalf of the respondents that the writ proceeding was liable to be dismissed for non-joinder of the Bank of Baroda as a party respondent. Reliances are placed on the decisions of State of Madras Vs. A. R. Srinivasan, reported in AIR 1966 SC 1827 , Divisional Forest Officer, Kothagudem Vs. Madhusudhan Rao, reported in (2008) 3 SCC 469 to submit that in the event the disciplinary authority agrees with the finding of the enquiry authority, the some reasons in the order of punishment makes that order sustainable in law. Reliance is placed on the decision of Lalit Popli Vs. Canara Bank, reported in (2003) 3 SCC 583 , to submit that preponderance of probability is the standard of proof in a disciplinary proceeding. Relying upon the decisions of State of Hariyana Vs. Rattan Singh, reported in (1977) 2 SCC 491 , R. S. Saini Vs. State of Punjab, reported in (1999) 8 SCC 90 , High Court of Judicature at Bombey Vs. Shashikant S. Patil, reported in (2000) 1 SCC 416 , Syed Rahimuddin Vs. Director General, C.S.I.R., reported in AIR 2001 SC 2418 , Government of A. P. Vs. Md. Nasirullah Khan, reported in (2006) 2 SCC 373 , it is submitted on behalf of the respondents that the scope of judicial review in the matter of disciplinary proceeding is limited and the same is restricted to examining of decision making process. Relying upon the decisions of Regional Manager, U.P.S.R.T.C., Etawah Vs. Hoti Lal, reported in (2003) 3 SCC 605 and Amit Vanaspati Co. Ltd. Vs. Relying upon the decisions of Regional Manager, U.P.S.R.T.C., Etawah Vs. Hoti Lal, reported in (2003) 3 SCC 605 and Amit Vanaspati Co. Ltd. Vs. Khem Chand, reported in (2006) 6 SCC 325 , it is submitted on behalf of the respondents that where the delinquent employee deals with public money or is engaged in financial transaction, the court should be slow to interfere with the quantum of punishment. Reliance is also placed on the decisions of the Rajasthan State Road Transport Corporation Vs. Krishna Kant, reported in AIR 1995 SC 1715 and Haryana State Co-operative Land Development Bank Vs. Neelam, reported in (2005) 5 SCC 91 , to submit that the Ld. Single Judge rightly observed that there was alternative and efficacious forum for agitation of the grievances of the appellant. (7) Having heard the learned counsels appearing on behalf of the parties as also taking into consideration we find that the factual score depicts that admittedly the enquiry officer either relied upon the evidences of the head cashier of Bank of Baroda, Beliaghata Branch, being M.W.1, or those of the joint manager of the above Branch of Bank of Baroda, being M.W., as the case may be, to come to the conclusion that the appellant handed over the bunch of currency notes of Rs.500/-denomination to the above head cashier after those note being stitched under his supervision. Immediately, the head cashier expressed his doubt about the genuineness of some of the notes and brought that fact to the knowledge of the authority. It was detected that ninety notes of Rs.500/- denomination were fake. The enquiry officer took note of the fact that from receiving the notes in the cash counter up to the handing over those notes to the head-cashier, no body else had the occasion to deal with those notes. Admittedly, the appellant exchanged some of those notes without recording it in the transfer register of the bank. (8) With regard to the non-production of two witnesses, enquiry officer recorded in his report that inspite of calling one Mr. Gopal Kumar Bubna, partner of M/s. Gourav Expocom Pvt. Ltd., did not turn up. The another witness Shri Joy Dulal Sinha, Senior Manager of the bank at the material point of time, was absent from duty on the date of occurrence of the incident. Gopal Kumar Bubna, partner of M/s. Gourav Expocom Pvt. Ltd., did not turn up. The another witness Shri Joy Dulal Sinha, Senior Manager of the bank at the material point of time, was absent from duty on the date of occurrence of the incident. With regard to the non-supply of copy of appointment letter of the appellant due to non-availability, the enquiry officer relied upon the evidence of the above joint manager to come to the conclusion that the appellant had been working in the cash department since 1994. Relying upon the evidence of the head cashier the enquiry officer came to the conclusion that there was Ultra Violet Ray Machine at the counter of the bank and there was no other guideline or circular of the bank to prescribe the mode of detecting fake notes. (9) The respondent no.1 gave an opportunity to the appellant to submit his representation to the above report. Further opportunity of hearing was given to the appellant by the respondent no.1, on December 29, 2000. Thereafter, the respondent no.1 passed a reasoned order of punishment against the appellant. Therefore, the disciplinary authority, namely the respondent no.1, passed the order of punishment against the appellant accepting the findings of the enquiry officer, which were based upon relevant evidences. (10) In view of the above, the learned Single Judge was right in refusing to interfere with the order of punishment. Regarding the order of the appellate authority, we find that brief reasons were indicated in the above order in affirming the order of punishment of the disciplinary authority. (11) As observed by the Honble Supreme Court in the matter of R.S. Saini Vs. State of Punjab, reported in (1999)8 SCC 90 , the scope of judicial review of the order passed in a disciplinary proceeding and that of the appellate authority by the High Court in exercise of the powers under Article 226 of the constitution of India is rather limited and has to be exercised within the circumscribes limits. It was noted as follows:- "16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we willhave to bear in mind the rule that the court while exercising writ jurisdiction willnot reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we willhave to bear in mind the rule that the court while exercising writ jurisdiction willnot reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably supportthe conclusion of the inquiring authority, it is not the function of the court toreview the evidence and to arrive at its own independent finding. The inquiringauthority is the sole judge of the fact so long as there is some legal evidence tosubstantiate the finding and the adequacy or reliability of the evidence is not amatter which can be permitted to be canvassed before the court in writ proceedings. 17. A narration of the charges and the reasons of the inquiring authorityfor accepting the charges, as seen from the records, shows that the inquiringauthority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in ouropinion, have been taken in a reasonable manner and objectively. The conclusionarrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the HighCourt has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of theConstitution and we do not find any fault with the findings of the High Court in this regard." (12) Since we find that the enquiry report under reference was based upon evidences and the same was backed by reasons, the settled principles of law as decided in the matter of Mr. V. Bijlani(supra), Sri Sankar Prasad Ghosh(supra) or Anil Kumar(supra) has no manner of application in this case. Similarly, we find that the order of punishment under reference was a reasoned order. Therefore, the principles of law as settled in the matters of General Manager, Laktak Power Station(supra), Biswanath Hazra(supra), H.C. Goel(supra) or Managing Director, ECIL, Hyderabad(supra) does not help the appellant in any way. Similarly, we find that the order of punishment under reference was a reasoned order. Therefore, the principles of law as settled in the matters of General Manager, Laktak Power Station(supra), Biswanath Hazra(supra), H.C. Goel(supra) or Managing Director, ECIL, Hyderabad(supra) does not help the appellant in any way. We find that in this case the appellate authority applied his mind to give brief reasons to affirm the order of punishment and as such the decisions of Junas Kerketta(supra), Indian Oil Corporation Limited(supra) does not help the appellant. We have examined the decision making process of the learned Single Judge with reference to the enquiry proceeding order of punishment and the order of the appellate authority. Therefore, the decision of Whirlpool Corporation (supra) and M/s. Popcorn Entertainment (supra) does not come in aid of the appellant to get any relief from this court. Therefore, we are unable to record our concurrence with the submission of the appellant. The judgment and order under appeal, in our view, cannot be said to be faulted in any way whatsoever. (13) The appeal, therefore, fails and is dismissed. There will be, however, no order as to costs. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.