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2011 DIGILAW 1446 (CAL)

Golam Jilani v. State Bank Of India

2011-11-25

PRANAB KUMAR CHATTOPADHYAY, SHUKLA KABIR SINHA

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JUDGMENT Chattopadhyay, J. 1. THE appellant herein filed a writ petition before the learned Single Judge challenging the enquiry report submitted by the enquiry officer, final order of punishment passed by the Disciplinary Authority and the subsequent order passed by the Appellate Authority affirming the said final order of the Disciplinary Authority. 2. THE appellant was appointed as a messenger in the subordinate cadre of the respondent-bank in the year 1979. The said appellant after obtaining bachelor degree in Arts from the University of Calcutta was promoted to the post of Assistant (Accounts) and thereafter was transferred to Pottery Road Area Branch in December, 1988. Subsequently, the appellant was transferred to Fort William Branch pursuant to his request. The appellant while working in the Fort William Branch received a letter from the Branch Manager, Pottery Road Area Branch of the respondent-bank on 22nd January, 2002 wherein certain allegations were made against the said appellant. The appellant was asked to submit his explanation in relation to those allegations within a period of 15 days from the date of receipt of the aforesaid letter. The appellant submitted his reply denying all the allegations made against him. The Disciplinary Authority was, however, not satisfied with the explanation of the appellant and placed him under suspension on 23rd May, 2002. Subsequently, the said Disciplinary Authority issued charge-sheet to the appellant. The appellant submitted his reply to the said charge- sheet, denying the charges levelled against him. The Disciplinary Authority, thereafter, decided to hold a departmental enquiry and accordingly, the appellant was informed about the appointment of the enquiry officer. 3. ON or about 30th December, 2002 the enquiry officer initiated the enquiry proceedings and ultimately submitted his report to the Disciplinary Authority. ON receiving the enquiry report and considering the findings of the enquiry officer, the Disciplinary Authority forwarded a copy of the enquiry report to the appellant herein with a forwarding letter dated March 8, 2004. The appellant was advised to submit a representation on the findings of the enquiry officer, as mentioned in the enquiry report. The appellant submitted his representation to the Disciplinary Authority on the findings of the enquiry officer. 4. The appellant was advised to submit a representation on the findings of the enquiry officer, as mentioned in the enquiry report. The appellant submitted his representation to the Disciplinary Authority on the findings of the enquiry officer. 4. THE Disciplinary Authority thereafter upon considering the enquiry report of the enquiry officer, representation of the appellant in connection with the said enquiry report and all other relevant documents in relation to the enquiry proceedings, proposed the punishment of removal of the appellant from service with superannuation benefits. The Disciplinary Authority of the respondent-bank, by a letter dated 11th May, 2004, asked the appellant to submit his representation in relation to the aforesaid proposed punishment, within ten days from the receipt of the said letter and the appellant was also offered an opportunity of personal hearing before the Disciplinary Authority on 24th May, 2004. The appellant however, neither submitted any written representation as advised by the Disciplinary Authority nor appeared for personal hearing on 24th May, 2004 as directed by the said Disciplinary Authority. The appellant however, met the Disciplinary Authority of the bank on 26th May, 2004, and on his request the said Disciplinary Authority granted an opportunity of personal hearing to the said appellant on that very day. The Disciplinary Authority thereafter by a reasoned order dated 27th May, 2004 intimated the appellant about the punishment of removal from service with superannuation benefits and without disqualification from future employment in terms of Para 6(b) of the Memorandum of Settlement dated 10th April, 2002, for proved acts of misconduct. It was further ordered that the period of suspension would be treated as such. The said final order dated 27th May, 2004 was received by the appellant on 31st May, 2004. The appellant preferred an appeal before the Appellate Authority on 29th June, 2004 challenging the said order of the Disciplinary Authority. 5. THE Appellate Authority however, affirmed the aforesaid order of the Disciplinary Authority by his order dated 25th August, 2004. 6. THE appellant herein thereafter filed a writ petition which was ultimately dismissed by the learned Single Judge by the judgment and order under appeal. The learned Counsel of the appellant submitted that the Disciplinary Authority did not assign any reason while holding the appellant guilty and imposing punishment. 6. THE appellant herein thereafter filed a writ petition which was ultimately dismissed by the learned Single Judge by the judgment and order under appeal. The learned Counsel of the appellant submitted that the Disciplinary Authority did not assign any reason while holding the appellant guilty and imposing punishment. The learned Counsel further submitted that the impugned order of punishment passed by the Disciplinary Authority cannot be sustained in the eye of law, since the said Disciplinary Authority did not assign any reason for holding the appellant guilty. The learned Counsel further submitted that the Appellate Authority also did not assign any reason while rejecting the appeal preferred by the appellant herein. 7. REFERRING to the order passed by the Appellate Authority, the learned Counsel of the appellant submitted that the said Appellate Authority affirmed the order of the Disciplinary Authority without disclosing proper reasons. The learned Counsel of the appellant submitted that the Disciplinary Authority should have considered the specific objections raised by the appellant herein in the written representation submitted in connection with the enquiry report and also the objections raised by the said appellant at the time of personal hearing before the Disciplinary Authority. 8. THE learned Counsel of the appellant specifically urged before this Court that the unreasoned order of the Disciplinary Authority cannot sustain in the eye of law as the said Disciplinary Authority was required to deal with the specific objections raised on behalf of the appellant herein, which he has not done. The learned Counsel of the respondent-bank, however, submitted that in the instant case the Disciplinary Authority and the Appellate Authority have passed reasoned orders. The said learned Counsel of the respondent-bank further submitted that even if the orders of the Disciplinary Authority and the Appellate Authority are held to be not reasoned, non-speaking and violative of the principles of natural justice, this Court should not disturb the aforesaid orders of the aforesaid authorities since any direction on the authorities concerned to comply with the principles of natural justice by supplying additional reasons would not ultimately lead to any different result and would thus be useless formality as observed by the Supreme Court in the case of Canara Bank v. V. K. Awasthy, reported in 2005 (6) SCC 321 . 9. 9. THE learned Counsel of the respondent-bank further argued that even if it is assumed that the order of the Disciplinary Authority is cryptic, non-speaking and unreasoned one, yet the same cannot be fatal since the said defects were cured by the appellate authority. 10. THE Disciplinary Authority passed the final order of punishment by removing the appellant from service with superannuation benefits. The order of the Disciplinary Authority is set out here under:- ORDER 1. Assistant General Manager, Region- 1, Zonal Office, Kolkata, as the Disciplinary Authority have carefully examined the Enquiry Officer's Report dated 27.02.2004 into the charges levelled against Shri Golam Jilani, Assistant (Under Suspension), Pottery Road Area Branch, Kolkata vide charge-sheet dated 27.09.2002, along with all the relevant papers of the enquiry, and the submission made by Shri Golam Jilani vide his letter dated 20.03.2004 on the Enquiry Officer's Report, a copy of which was forwarded to him on 08.03.2004 for his submission there on. 2. After examining the case in its entirety, I am in agreement with the Enquiry Officer's finding that he forged the signature of the drawer in a few cheques in Current Account No. SIB/323 of M/s. Zeeshan International and also failed to note the return of a clearing cheque for Rs. 2.00 lac in the above account and which resulted in the creation of unauthorized overdraft in the said account. 3. I have applied my mind freely and independently to the full facts and the circumstances of the case and I consider that the ends of justice would be adequately met if he is "Removed from Service with superannuation benefits viz. pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment" in terms of para 6 (b) of the Memorandum of Settlement on Disciplinary Action and Procedure for Workmen Staff dated 10th April, 2002. I order accordingly. 4. I further order that the period of his superannuation w.e.f. 23.05.2002 be treated as such. DISCIPLINARY AND APPOINTING AUTHORITY Assistant General Manager Region-I Zonal Office, Kolkata. On examination of the aforesaid order of the Disciplinary Authority, we are satisfied that no reason was assigned by the Disciplinary Authority while holding the appellant guilty and imposing the punishment. 4. I further order that the period of his superannuation w.e.f. 23.05.2002 be treated as such. DISCIPLINARY AND APPOINTING AUTHORITY Assistant General Manager Region-I Zonal Office, Kolkata. On examination of the aforesaid order of the Disciplinary Authority, we are satisfied that no reason was assigned by the Disciplinary Authority while holding the appellant guilty and imposing the punishment. The Disciplinary Authority was required to deal with the objections raised on behalf of the appellant herein while holding the appellant guilty and imposing punishment by the aforesaid final order. The Appellate Authority however, cured the aforesaid defects of the Disciplinary Authority by assigning appropriate reasons in support of the order of punishment issued by the Disciplinary Authority. The relevant extracts from the order of the Appellate Authority are set out hereunder:- "3. Shri Golam Jilani has represented for setting aside the punishment imposed on him by the D.A. and exonerating him from the charges leveled against him on the basis of following points: (i) He was denied opportunity of personal hearing as well as submission of representation on the punishment proposed by the Disciplinary Authority. (ii) His counsel sought to obtain a second opinion by another document examiner on the disputed signatures and the enquiry officer turned down his request. (iii) He has raised several points relating to the facts of the case. I have carefully examined the contention made by Shri Jilani and observe as under:- (i) I observe that he appeared for personal hearing before the Disciplinary Authority on 26.05.2004. Therefore, his allegation in this regard is not correct. I further observe that he was granted adequate opportunity for submission of his representation on the proposed punishment. The 2nd show-cause notice with proposed punishment was received by him on 17.07.2004 and final order was passed by D. A. on 27.07.2004 i.e. after lapse of 11 days which according to my opinion was reasonable. (ii) I observe that the handwriting expert's opinion in the report was categorical without any ambiguity. Therefore, there was no reason to obtain a 2nd opinion on the disputed signatures. The action of the enquiry officer is therefore in order and should not be construed as denial of natural justice. (iii) Having examined the enquiry officer's report, proceedings of the enquiry and other related papers, I am of the view that the factual points raised by him do not merit any further consideration. The action of the enquiry officer is therefore in order and should not be construed as denial of natural justice. (iii) Having examined the enquiry officer's report, proceedings of the enquiry and other related papers, I am of the view that the factual points raised by him do not merit any further consideration. The Disciplinary Authority arrived at the quantum of penalty on the basis of the charges established in the enquiry. Considering the nature and gravity of the charges I fully concur with the Disciplinary Authority's order, since I am of the opinion that an employee in a Bank dealing in money matter is required to display trust, sincerity and integrity of the highest order. I am, therefore, of the considered opinion that the punishment imposed by the Disciplinary Authority is in order. I find no reason to reconsider the order of the Disciplinary Authority which I confirm and I order accordingly." 11. THE learned Counsel of the appellant alleged that the Appellate Authority blindly accepted the report of the enquiry officer and the order passed by the Disciplinary Authority. We are however, unable to accept the same since from the order of the Appellate Authority we find that sufficient reasons have been assigned by the Appellate Authority while affirming the order of the Disciplinary Authority. 12. THE order passed by the Disciplinary Authority is undoubtedly a cryptic and unreasoned order. However, it is not in dispute that the appellant herein was granted opportunity by the Disciplinary Authority to submit representations on the findings of the enquiry officer and subsequently, on the proposed punishment before issuing the final order of punishment. The appellant was also granted opportunity of personal hearing by the said Disciplinary Authority before passing the final order. The appellant however, failed to appear before the Disciplinary Authority on 24th May, 2004 for personal hearing. Upon considering the subsequent request, another opportunity of personal hearing was granted to the said appellant by the Disciplinary Authority. Therefore, it cannot be said that the respondent-bank violated the principles of natural justice while conducting the disciplinary proceedings. The failure of the Disciplinary Authority to supply adequate reasons in support of the order of punishment issued to the appellant has been cured subsequently by the order of the Appellate Authority since the said Appellate Authority while affirming the order of the Disciplinary Authority supplied adequate reasons. The failure of the Disciplinary Authority to supply adequate reasons in support of the order of punishment issued to the appellant has been cured subsequently by the order of the Appellate Authority since the said Appellate Authority while affirming the order of the Disciplinary Authority supplied adequate reasons. The reasons supplied by the Appellate Authority cannot be held to be perverse or inadequate under any circumstances. The learned Counsel representing the appellant referred to and relied on the following decisions of the Supreme Court in support of the argument that the impugned orders passed by the Disciplinary Authority and the Appellate Authority cannot be sustained in the eye of law:- 1. Roop Singh Negi v. Punjab National Bank, reported in 2009 (2) SCC 570 . 2. Ram Chandra v. Union of India, reported in 1986 (3) SCC 103 . 3. Deokinandan Sharma v. Union of India and Ors., reported in AIR 2001 SC 1767 . 4. P. Seshadri v. S. Mangati Gopal Reddy and Ors., reported in 2011 (5) SCC 484 . 13. THE decisions have no manner of application in the facts of the present case specially when we find that the order passed by the Appellate Authority is a reasoned one. 14. IT has been alleged on behalf of the appellant that the respondent-bank did not suffer any loss due to alleged misconduct of the appellant and therefore, no punishment could be imposed on the appellant herein. We are unable to accept the aforesaid argument as the Hon'ble Supreme Court in the case of State Bank of India and Anr. v. Beta Bagchi and Ors., reported in 2005 (7) SCC 435 specifically observed:- "15. A bank officer is required to exercise higher standards of honesty and integrity. He deals with 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 which resulted in the 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 which resulted in the case, when the officer/employee acted without authority. The very discipline of an organisation more particularly a 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. That being so, the plea about absence of loss is also sans substance." The learned Counsel of the appellant urged before this Court that the matter be sent back to the Disciplinary Authority after quashing the unreasoned order. We are however, of the opinion that no useful purpose will be served by sending the matter back to the Disciplinary Authority after quashing the unreasoned order since the Appellate Authority cured the aforesaid defect by passing a reasoned order while affirming the decision of the Disciplinary Authority. The reasoned order passed by the Appellate Authority cannot be upset only on the ground that the Disciplinary Authority passed an unreasoned order, unless a specific objection is taken by the employee concerned that proper grounds could not be taken before the Appellate Authority in view of the non-speaking order passed by the Disciplinary Authority, which is not the case here. 15. THE employee concerned, namely the appellant herein, submitted a written representation before the Appellate Authority assailing the order passed by the Disciplinary Authority. In the said representation, the appellant mentioned all the grounds which were urged before this Court. 16. FURTHER more, the appellant never claimed that he could not exercise his right of appeal effectively since the order passed by the Disciplinary Authority was an unreasoned one. As a matter of fact, the employee concerned did not challenge the validity and/or legality of the order passed by the Disciplinary Authority on the ground that the same is an unreasoned order. The employee concerned could not place any material before us in order to establish that he had been prejudiced by the unreasoned order of the Disciplinary Authority. As a matter of fact, the employee concerned did not challenge the validity and/or legality of the order passed by the Disciplinary Authority on the ground that the same is an unreasoned order. The employee concerned could not place any material before us in order to establish that he had been prejudiced by the unreasoned order of the Disciplinary Authority. Going through the records, we find that the employee concerned submitted detailed representation before the Appellate Authority and the said Appellate Authority passed a reasoned order while disposing of the said representation. 17. IT has been established before the Enquiry Officer that the appellant herein did not discharge his duties with integrity and honesty and we also find that the reasoned order passed by the Appellate Authority does not suffer from any infirmity. In the aforesaid circumstances, we find no reason to send the matter back to the Disciplinary Authority only for the purpose of assigning the reasons in support of his decision, ignoring the reasoned order passed by the Appellate Authority. The 'useless formality theory' is very much applicable in the facts of the present case. 18. IN the case of Canara Bank v. V. K. Awasthy (supra), Hon'ble Supreme Court observed:- "18. As was observed by this Court we need not to go into "useless formality theory" in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned Counsel for the appellant, unless failure of justice is occasioned or that it would not be in public interest to do so in a particular case, this Court may refuse to grant relief to the employee concerned. (See Godde Venkataswara Rao v. Govt. of A. P.) It is to be noted that legal formulations cannot be divorced from the fact situation of the case........." Charges levelled against the appellant are very serious in nature and the same have been established before the Enquiring Authority. Considering the gravity of the charges, Disciplinary Authority imposed proper punishment on the appellant herein which was subsequently affirmed by the Appellate Authority. We do not find any illegality and/or irregularity in the aforesaid decisions. An employee of a bank must display integrity of the highest order which the appellant herein could not show. 19. Considering the gravity of the charges, Disciplinary Authority imposed proper punishment on the appellant herein which was subsequently affirmed by the Appellate Authority. We do not find any illegality and/or irregularity in the aforesaid decisions. An employee of a bank must display integrity of the highest order which the appellant herein could not show. 19. THE judgment and order under appeal passed by the learned Single Judge does not call for any interference for the reasons discussed hereinabove. Therefore, we affirm the judgment and order under appeal passed by the learned Single Judge. Accordingly, this appeal stands dismissed. 20. IN the facts of the present case, there will be however no order as to costs. Let urgent xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.