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2009 DIGILAW 67 (GAU)

Amaresh Narayan Chowdhury v. United Bank of India

2009-01-30

ASHOK POTSANGBAM, RANJAN GOGOI

body2009
JUDGMENT Ranjan Gogoi, J. 1. The writ petition filed by the Appellant challenging the penalty of removal from service having been rejected by the learned Single Judge by order dated 8.2.2006 the present appeal has been filed. 2. The facts that will be required to be recited for the purpose of the present adjudication may now be briefly noticed. At the relevant point of time the Appellant-writ Petitioner was holding the post of Branch Manager, Bharalumukh Branch of the United Bank of India. On 16.2.1996 he was placed under suspension. Simultaneously a charge-sheet containing four charges was served on the Appellant. The Appellant submitted his reply to the aforesaid charge memo on 15.7.1996 denying the allegations levelled against him. The reply of the Appellant not having been found to be satisfactory an enquiry was ordered into the charges levelled. The Appellant participated in the said enquiry which ended in the report of the Enquiry Officer dated 31.12.1997 holding all the charges levelled against the Appellant to have been proved. On 9.1.1998 the Appellant was served with a copy of the enquiry report to which he submitted his reply. Thereafter, the impugned order dated 12.10.1999 was passed imposing the penalty of removal from service. The Appellant filed a departmental appeal on 6.12.1999 which however remained unanswered in spite of repeated requests and reminders of the Appellant. At this stage, the Appellant approached this Court by instituting the writ proceeding registered and numbered as WP(C) No. 6350 of 2001, 3. In the aforesaid proceeding the Appellant had assailed the penalty imposed on him by contending, inter alia, that the departmental enquiry was not conducted in accordance with law and the findings reached against him in the said enquiry are not tenable and therefore the punishment imposed is unsustainable. Specifically, the Appellant had contended that one Sri Kalyan Chakraborty who held charge of the Bharalumukh Branch of the Bank immediately before the Appellant also faced a departmental enquiry in respect of 18 allegations, in all, some of which overlapped with the allegations levelled against the Appellant. The Appellant further contend that the allegations levelled against the aforesaid Kalyan Chakraborty were more serious and the amounts involved were much higher than in the case of the petitioner. The Appellant further contend that the allegations levelled against the aforesaid Kalyan Chakraborty were more serious and the amounts involved were much higher than in the case of the petitioner. Though the charges levelled against the aforesaid Kalyan Chakraborty were found to be established the penalty of reduction of basic pay including stagnation of increment and FPA was imposed on Kalyan Chakraborty whereas the punishment of removal has been imposed on the petitioner. 4. It will be appropriate, at this stage, to notice the charges levelled against the Appellant along with the explanation submitted by the Appellant in respect of the same. Charge No. 1 On 10.10.1995, you had given effect to a cheque for Rs. 7,00,115/- drawn on State Bank of India, Guwahati Branch, by crediting the said amount to S.B. A/C No. 4439 of Shri Raj Kumar Das, who is also holder of one CD. A/C No. 756 with your Branch after debiting Clearing Adjustment A/C and by signing the relative vouchers singly. But the said Cheque for Rs. 7,00,115/- was not sent for collection through clearing on any date before 12.12.1995 though the effect of the said Cheque was allowed to be withdrawn by the Account holder on 10.10.1995. The said Cheque, was, however, sent for collection through clearing on 12.12.1995 which was again returned and ultimately it was relodged and realised on 15.12.1995. Thus, with an ulterior motive, you had extended undue favour to the Account holder of S.B. A/C No. 4439 and in gross violation of Bank's rules and procedure, you allowed him to enjoy the Bank's funds thereby jeopardising the interest of the Bank and for your such unauthorised act, the Bank remained out of fund for more than 2 months for the said amount. Explanation offered by the Petitioner in respect of charge No. 1 The said Cheque was left lying in the drawer of the Deputy Manager Shri N. Baishya. This was admitted by Shri N. Baishya himself as MW 1. Further, the Petitioner was not the custodian of the Cheque. Charge No. 2 You had recklessly allowed overdrawing in the CD. A/C No. 745, 749, 755 and in 773 in gross violation of the Bank's rules and procedure and also without ensuring coverage of the overdrawn amounts by any/proper security. Out of those four CD. A/Cs, there was not a single deposit in the CD. Charge No. 2 You had recklessly allowed overdrawing in the CD. A/C No. 745, 749, 755 and in 773 in gross violation of the Bank's rules and procedure and also without ensuring coverage of the overdrawn amounts by any/proper security. Out of those four CD. A/Cs, there was not a single deposit in the CD. A/C No. 745 and 749 and there was a very meager deposit in the CD. A/C No. 773, excepting the initial deposits made at the time of obtaining of those accounts. In all these cases, you deliberately did not report of such overdrawings allowed by you to Your R.M. office in order to suppress your misdeeds. Again to misguide the Bank you had passed the Cheques (as detailed in Annexure-A) through O.D. Cheque Passing Register to show and suggest that the O.D. facilities had been allowed to the parties concerned as usual, but the required procedures and formalities on this score had not been observed by you at all. You had, thus, extended undue benefit to the aforesaid parties and allowed to them to enjoy the Bank's funds in an unauthorised manner jeopardizing the interest of the Bank. In utter disregard to the laid down norms and procedures of the Bank on this score, you had exposed the Bank to financial risk for a total outstanding balance of Rs, 20,90,585/- as on 10.1.1996 excluding the usual interest to be charged thereon. Explanation offered by the Petitioner in respect of Charge No. 2. All The overdrawing were allowed, within the full knowledge of the C.R.M. (Chief Regional Manager), to the group/associate accounts of Shri Kushal Kumar Talukdar, a valued customer having long standing relationship with the Branch much before the Petitioner joined as Branch Manager and was also the single largest borrower of the Branch. The overdrawings were permitted on genuine business considerations. The entire outstanding has been fully recovered now and no loss whatsoever has been suffered by the Bank. Charge No. 3.You had allowed unauthorized drawings for Rs. 75,000/- to India Automobiles, the holder of the CD. A/C No. 646 on 14.12.1994 and the said amount was drawn by the A/C holder by a Cheque No. 875863. Thereby, you had shown undue favour to the said party and allowed him to enjoy the Bank's funds in gross violation of the Bank's norms/rules in this regard. 75,000/- to India Automobiles, the holder of the CD. A/C No. 646 on 14.12.1994 and the said amount was drawn by the A/C holder by a Cheque No. 875863. Thereby, you had shown undue favour to the said party and allowed him to enjoy the Bank's funds in gross violation of the Bank's norms/rules in this regard. You had not reported such drawings to your R.M. office in order to suppress your misdeeds and thus you had exposed the Bank to financial risk to the extent of Rs. 69,235/- as on 10.01.1996 excluding usual interest to be charged thereon. Explanation offered by the Petitioner in respect of Charge No. 3. Payment was made by the earlier Manager, Sri Kalyan Chakraborty, and the date of the Cheque was distorted by putting the date of payment as 14.12.1994 instead of 14.12.1993. In the enquiry, it was proved by MW 1 that the Cheque "Ex-M, Ex-35" was passed by the earlier Manager, Sri Kalyan Chakraborty, who was released, on 12.1.1994, after handing over the charge. In any case, the entire liability is fully liquidated and there remains no outstanding. Charge No. 4.You had extended undue benefits to 7 (seven) Nos. of Cash Credit A/C holders (As per the Annexure-A) by deliberately allowing excess drawings much beyond the respective sanction limit without taking due care to protect the interest of the Bank by obtaining proper security as coverage for the excess drawn amount. In all these cases, you did not obtain the required stock/book debt statement as per rules/norms of the Bank and also failed and neglected to conduct any inspection to the said borrowal unit in order to ascertain the end use of the funds so disbursed by you. You had also not reported to your R.M. office about such excess drawing allowed by you in the said Cash Credit Accounts and by your such unauthorized act the Bank has been exposed to financial risk to the extent of Rs. 32, 35 lakhs as on 10.1.1996. Explanation offered by the Petitioner in respect of Charge No. 4.The Bank itself, in its affidavit-in-opposition, has admitted that out of the total amount of Rs. 32.25 lakhs, the Petitioner has only allowed overdrawings of about Rs. 2 lakhs and the remaining amount of Rs. 30 lakhs was allowed by the earlier Manager, Sri Kalyan Chakraborty. Explanation offered by the Petitioner in respect of Charge No. 4.The Bank itself, in its affidavit-in-opposition, has admitted that out of the total amount of Rs. 32.25 lakhs, the Petitioner has only allowed overdrawings of about Rs. 2 lakhs and the remaining amount of Rs. 30 lakhs was allowed by the earlier Manager, Sri Kalyan Chakraborty. In any case, the entire outstanding is fully liquidated by the parties concerned. 5. It will also be appropriate for the Court to notice herein the summary of the reasons recorded by the Enquiry Officer in the report of enquiry. The same are extracted below: Reasons for finding. Analysis of evidence on record made herein above show that Bank's rules and procedures were violated, overdrawals were allowed to the parties far in excess of the powers delegated to the CSO, the instances of overdrawals allowed by the CSO were not at all reported though the irregularity statement to the Regional Office, reasons for allowing overdrawal in the accounts beyond the authority of the CSO as envisaged by him provided to be shallow justifying financial risk to a great extent. Instance of overdrawal is not once but repeated. The cumulative consideration of documentary evidence does not lead any prudent mind that the CSO while performing his duties as Manager has taken all possible steps to ensure and protect the interest of the Bank, the evidence on record further does not lead to conclude that the CSO discharged his duties of Manager with due care and attention while dealing with public money and extending undue favour to the Account holders named above. From the instances and manner in which the CSO favoured the limited number of Account holders it is established through evidence that the CSO has failed to discharge his duties with utmost integrity, honesty, devotion and diligence. The acts do not fall within the phraseology of "becoming of an Officer of the Bank" that is the acts are unbecoming of an Officer of the Bank whose foremost duty is to protect the interest of the Bank. 6. The learned Single Judge hearing the writ petition, upon an elaborate consideration, had thought it proper to dismiss the same. The acts do not fall within the phraseology of "becoming of an Officer of the Bank" that is the acts are unbecoming of an Officer of the Bank whose foremost duty is to protect the interest of the Bank. 6. The learned Single Judge hearing the writ petition, upon an elaborate consideration, had thought it proper to dismiss the same. Such dismissal of the writ petition was primarily on the ground that the punishment awarded to Sri Kalyan Chakraborty is unacceptable in law and, therefore, the Petitioner cannot be understood to have a legal right to insist on a similar treatment as meted out to Sri Kalyan Chakraborty. In this regard, reference was made by the learned Single Judge to two decisions of the Apex Court in Disciplinary Authority-cum-Regional Manager and Ors. v. Nikunja Bihari Patnaik reported in (1996) 9 SCC 69 and Chandigarh Administration and Anr. v. Jagjit Singh and Anr. reported in (1995) 1 SCC 745 . 7. The only argument offered by Sri P.K. Goswami, learned Seniour Counsel for the Appellant-writ Petitioner, notwithstanding the pleadings contained in the writ petition, are to the effect that the lesser penalty i.e. reduction of basic pay etc. imposed on Sri Kalyan Chakraborty despite the adverse findings recorded on more serious charges has the effect of rendering the punishment of removal imposed on the Appellant discriminatory. In this regard, Sri Goswami, has painstakingly taken the Court through the charges levelled against the Appellant as contained in the charge memo dated 15.7.1996 as well as the charges levelled against Sri Kalyan Chakraborty which have been enclosed to the writ petition as Annexure-P. It is the submission of Sri Goswami that not only the charges levelled against the aforesaid Kalyan Chakraborty were numerically stronger than those levelled against the Appellant; some of the charges are far more serious than those that were brought against the Appellant. Sri Goswami has further pointed out that some of the charges against the Appellant i.e. charge No. 2 and 4 overlapped with the similar charges against Sri Kalyan Chakraborty as both the persons were holding charge of the same Branch of the Bank and dealing with the same customers. The amount involved in the charges levelled against Kalyan Chakraborty were far higher than those involving the Appellant. The amount involved in the charges levelled against Kalyan Chakraborty were far higher than those involving the Appellant. Sri Goswami has also argued that the materials on record particularly the documents enclosed as Annexures-V and W to the writ petition clearly demonstrate that all the amounts involved in the charges levelled against the Appellant have been recovered by the Bank and furthermore that in effecting such recovery the Appellant had taken the necessary follow up action even after his retirement. 8. Sri Goswami has further argued that the primary basis on which the learned Single Judge had declined to grant relief to the Appellant is that the punishment imposed on Sri Kalyan Chakraborty is unjustified and contrary to law and that such a wrong order passed in the case of Sri Kalyan Chakraborty cannot be a legal basis for a direction to the Respondent Bank to deal similarly with the Appellant. According to Sri Goswami, the aforesaid reasoning is unacceptable as the punishment imposed on Sri Kalyan Chakraborty was not the subject matter of the case under consideration or any other proceeding and the said punishment had not been set aside or altered either by the Bank or by any Court of law. The same, therefore, could not have been held to be unjustified or illegal to deny similar treatment to the Appellant. In this regard, Sri Goswami has relied on a recent judgment of the Apex Court in the case of Akhilesh Kumar Singh v. State of Jharkhand and Ors. reported in (2008) 2 SCC 74 , wherein the Apex Court had held that "delinquent officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it is desirable that they be dealt with similarly." 9. The arguments advanced by Sri Goswami, learned Senior Counsel for Appellant, have been sought to be controverted by Sri S. Dutta, learned Counsel appearing for the Respondent Bank. At the very outset, Sri Dutta has sought to dispute the position that the amounts covered by the charges levelled against the Appellant have been recovered in full by the Bank. The arguments advanced by Sri Goswami, learned Senior Counsel for Appellant, have been sought to be controverted by Sri S. Dutta, learned Counsel appearing for the Respondent Bank. At the very outset, Sri Dutta has sought to dispute the position that the amounts covered by the charges levelled against the Appellant have been recovered in full by the Bank. However, the contents of Annexures-V and W to the writ petition having been re-read and re-considered by Sri Dutta in the light of the statements made in paragraph XXVI of the writ petition and the reply thereto by the Bank, the said issue i.e. whether the amount has been recovered in full has ceased to remain a contentious issue as the materials on record sufficiently indicate that all amounts involved in the charges levelled against the Appellant have been recovered by the Bank. 10. However, it is the further argument of Sri Dutta that regardless of the fact that whether the amount has been recovered by the Bank and no loss has been occasioned, the punishment imposed on Sri Kalyan Chakraborty cannot furnish a reasonable and legally acceptable basis for similar treatment of the Appellant as the said punishment imposed on Sri Kalyan Chakraborty is per se illegal. Referring to the judgment of the Apex Court in the case of Disciplinary Authority-cum-Regional Manager and others (supra) Sri Dutta has vehemently contended that the actions of an officer of a Bank beyond the limits of his authority constitute a serious misconduct for which the punishment of dismissal has been found by the Apex Court to be justified. If that be so, according to Sri Dutta, the punishment imposed on Sri Kalyan Chakraborty has to be understood to be legally untenable and, therefore, award of a similar punishment to the Appellant, on the said basis, will lack legal foundation. Sri Dutta has further submitted that in the present case the Appellant was categorically and unequivocally found to have allowed drawals from different accounts in excess of the authority vested in him as the Branch Manager. It was also found by the Enquiry Officer that the Appellant committed other serious lapses in performance of duties, all of which had the potential of causing harm to the Bank. It is, therefore, a case of loss of confidence of the Bank in the Appellant. It was also found by the Enquiry Officer that the Appellant committed other serious lapses in performance of duties, all of which had the potential of causing harm to the Bank. It is, therefore, a case of loss of confidence of the Bank in the Appellant. The award of punishment of removal, therefore, is wholly justified, according to Sri Dutta. 11. The arguments raised on behalf of the Appellant have narrowed down the controversy in the present case. The said controversy centers round the justifiability of the impugned punishment of removal imposed on the Appellant in the light of the punishment awarded to Sri Kalyan Chakraborty against whom similar charges had been found to be proved. Sri Kalyan Chakraborty, as already noticed, has been visited with a major penalty but one of reduction of basic pay covered by Regulation 4(e) of the Discipline and Appeal Regulations in force in the Bank (a fact stated in the order dated 27.4.1999 imposing the said punishment on the aforesaid Kalyan Chakraborty). However, the Appellant, on proof of similar charges against him, has been removed from service which is another specie of major punishment contemplated by Regulation 4(g) of the Regulations. Will the aforesaid situation be sustainable in law, is the moot question arising for our determination in the present case. 12. The observations of the Apex Court in Akhilesh Kumar Singh, (supra) have already been noted in paragraph 8 of the present order. In the said decision of the Apex Court two other decisions on the point i.e. Director General of Police v. G. Dasayan reported in (1998) 2 SCC 407 and Anand Regional Coop. Oil Seedsgrowers' Union Ltd. v. Shailesh Kumar Harshadbhai Shah reported in (2006) 6 SCC 548 , have been referred to. A reading of the aforesaid two judgments would seem to indicate that a similar view has been taken by the Apex Court as expressed in the judgment in Akhilesh Kumar Singh, (supra). 13. The arguments advanced on behalf of the Respondents on the basis of the decision of the Apex Court in Disciplinary Authority-cnm-Regional Manager and Ors. v. Nikunja Bihari Patnaik reported in (1996) 9 SCC 69 , may now be considered. In Disciplinary Authority-cum-Regional Manager, (supra) the concerned incumbent who was also a Branch Manager of the Central Bank of India was charged with commission of acts in excess of the authority vested in him. v. Nikunja Bihari Patnaik reported in (1996) 9 SCC 69 , may now be considered. In Disciplinary Authority-cum-Regional Manager, (supra) the concerned incumbent who was also a Branch Manager of the Central Bank of India was charged with commission of acts in excess of the authority vested in him. As a result of such actions, in respect of some transactions, the Bank had benefited whereas in respect of others the amounts had become "sticky and irrecoverable". Such acts were committed by the concerned incumbent over a period of time. The said acts were found to be amounting to misconduct under the norms in force in the Bank by the Enquiring as well as the appellate authority. The High Court of Orissa hearing the writ petition against the order of dismissal however took the view that such acts did not amount to misconduct but were mere error of judgment. The matter having been taken in appeal the Apex Court took the view that every officer of a Bank must scrupulously function within the limits of his authority as any other view may have the effect of bringing anarchy in the management of the Bank. In this regard the Apex Court further took the view that whether such acts had occasioned loss to the Bank or not would not be a relevant fact. In the above circumstances the Apex Court found it appropriate to reverse the view taken by' the High Court and maintain the punishment of dismissal imposed by the disciplinary authority. 14. The judgment of the Apex Court in Disciplinary Authority-cum-Regional Manager, (supra), in our considered view, must be understood in the above perspective. The aforesaid judgment cannot be understood to be expression of any view that in case a charge of acting beyond authority is proved against an officer of the Bank the punishment of dismissal or removal must necessarily follow. No such view had been expressed. Consequently, it cannot be said that the imposition of the major penalty of reduction of basic pay imposed on Sri Kalyan Chakraborty is per se illegal as has been contended on behalf of the Bank. 15. The legality of the punishment imposed on Sri Kalyan Chakraborty was not an issue before the Court in the writ petition out of which this appeal has arisen or in any other proceeding. 15. The legality of the punishment imposed on Sri Kalyan Chakraborty was not an issue before the Court in the writ petition out of which this appeal has arisen or in any other proceeding. We are also not informed that the Bank had thought it proper to alter the said punishment, a course of action that was open to the Bank if it had understood the said punishment to be illegal. The action of the Bank in maintaining the punishment imposed on Kalyan Chakraborty and at the same time contending the said punishment to be illegal before the Court would hardly be consistent. The correct course of action for the Bank in such a situation would have been to alter the punishment imposed on Kalyan Chakraborty and thereafter justify the punishment imposed on the Appellant oh that basis. Such a course of action could have been taken only by the Bank, as in the absence of any challenge to the punishment imposed on Kalyan Chakraborty no opinion could be expressed by the Court on the adequacy of the said punishment; neither any ex parte direction could have been issued by the Court in respect of the punishment imposed on the aforesaid Kalyan Chakraborty. 16. The Court has also noticed that the learned Single Judge in refusing to grant relief to the Appellant-writ Petitioner had relied on a judgment of the Apex Court in Chandigarh Administration and another, (supra). The view expressed by the Apex Court in Chandigarh Administration, (supra) that a wrong order cannot form the basis of any direction of the Court must now be attempted to be understood in its proper perspective. 17. In paragraph 9 of the judgment in, Chandigarh Administration, (supra) the Apex Court has held that the "Question of discrimination could have arisen only if two findings were recorded by the High Court, viz., (1) the order in favour of Prakash Rani was a legal and valid one and (2) the case of the writ Petitioners was similar in material respects to the case of Prakash Rani but she has not been accorded the same treatment. No such findings have been recorded by the High Court in this case." 18. That the second condition visualized by the Hon'ble Apex Court, as stated above, exists in the present case is not in doubt. No such findings have been recorded by the High Court in this case." 18. That the second condition visualized by the Hon'ble Apex Court, as stated above, exists in the present case is not in doubt. The charges against the Appellant and Sri Kalyan Chakraborty that were found to be established were largely similar. In so far as the first condition is concerned, in a situation where out of the four different kinds of major punishment contemplated by the provisions of the Regulations, the major punishment of reduction of basic pay was imposed on Sri Kalyan Chakraborty with due regard to the charges levelled, as evident from the order of penalty of Sri Kalyan Chakraborty dated 27.4.1999, it can hardly be said that the said punishment is illegal and invalid on the face of it, which is the test that has to be applied for the purposes of the limited scrutiny that would be permissible in situations like the present. After all, time and again, it has been acknowledged that the employer is the best judge of the quantum of punishment that should be imposed. The employer in the present case i.e. the Bank at no stage had even remotely tried to correct/alter the punishment imposed on Sri Kalyan Chakraborty. In such circumstances, the inevitable conclusion that must be reached is that it cannot be said that the order of penalty in respect of Sri Kalyan Chakraborty is tainted by any apparent illegality judged from the limited perspective indicated above. 19. The above apart the Respondents in Chandigarh Administration, (supra) were found to be repeated defaulters in payment of the bid money due under an auction sale of immovable property conducted by the Chandigarh Administration. They had moved the Apex Court against an order refusing restoration of the property. The primary if not the sole ground for the relief sought was that in live similar circumstances another person was granted restoration. The Apex Court took note of the detailed facts of the case including the number of defaults committed by the Respondents before it as well as the fact that, at one point of time, the Respondents had voluntarily taken back the bid money already deposited and after a long time had instituted the proceedings before the High Court. 20. The Apex Court took note of the detailed facts of the case including the number of defaults committed by the Respondents before it as well as the fact that, at one point of time, the Respondents had voluntarily taken back the bid money already deposited and after a long time had instituted the proceedings before the High Court. 20. What also cannot escape our notice while considering the Apex Court's judgment in Chandigarh Administration, (supra) is the fact that the order of the Government on which reliance was placed to seek a direction from the Court for similar treatment was an administrative order in this regard the observation of the Apex Court contained in paragraph 8 is that administrative orders do not create binding precedents. What would be the position in case or orders passed by quasi judicial authorities was, however, left undecided. There can be no manner of doubt that exercise of the power to impose any particular punishment out of the different kinds of punishment that may be awardable, undoubtedly, would be an instance of exercise of quasi judicial power with all its inherent trappings. 21. In the light of what has been discussed above, we are of the view that the punishment imposed on the Appellant i.e. removal from service should be interfered with by us. The said punishment, therefore, is set aside and the matter is remitted to the Respondents to take a fresh decision in the matter in the light of the principles of law and our observations contained in the present order. Following such de novo decision in the matter, all consequential reliefs as may reasonably flow to the Appellant including protection of pension (Appellant-writ Petitioner has, in the meantime, retired in the year 2002) will be afforded to him. The Bank shall re-decide the matter as expeditiously as possible and in any case within a period of two months from the date of receipt of a copy of this order. 22. Consequently, the writ appeal is partly allowed to the extent indicated above.