Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 783 (CAL)

Haradhan Bhattacharjee v. State Bank of India

2012-08-17

TAPEN SEN

body2012
Judgment Tapen Sen, J. This Writ Petition is directed against the charge-sheet dated 23.11.2004 issued by the Assistant General Manager, State Bank of India (Respondent No. 3) initiating Departmental proceedings against the Petitioner. The Writ Petition also seeks to challenge the Report of the Inquiry Officer as well as the Order of dismissal passed on 8.3.2007 (Annexure-P/22) and the Order passed on 31.5.2007 by the Deputy General Manager (Respondent No. 2) (see pages 168 to 170) confirming the Order of punishment and rejecting the Appeal. 2. It is apparent from the documents brought on record that the Petitioner, while posted in the Bill Section of N.S. Road Branch, Kolkata committed certain irregularities and the gist of the same, as taken from the charge-sheet, are as follows :- i) He opened a CA A/c No. 1554 on 1.7.1988 at the Corporation Bank, Dharamtala Street, Kolkata in the name of M/s. United Engineering Company. While opening the said account he put his signature as HP Singha, the Proprietor of the said Firm in all places of the account opening form and signature card. The charge-sheet alleged that he put his signature fictitiously and operated the said account as HP Singha. This, according to the charge-sheet issuing authority was confirmed by the handwriting expert and as per Report of the CBI. ii) He deposited 5 bills for collection at the Corporation Bank, Dharamtala Branch and which were drawn on different drawees of Dhanbad. Those bills were sent to the SBI, N.S. Road Branch for collection and subsequently the said SBI sent the bills to SBI Dhanbad for realization. In the meantime, two debit transfers amounting to Rs. 1,60,000/-and Rs. 2,48,300/-dated 12.8.1988 and 23.8.1988 were forwarded by the SBI Dhanbad Branch and they were received at the NS Road Branch, Kolkata against Bill Nos. B/362 and B/375. It was alleged that the Petitioner prepared two Banker’s cheques of Rs. 1,59,353/-and Rs. 2,47,297/-against those fraudulent TRs. and sent them to the Corporation Branch, Dharamtala for credit in the account of M/s. United Engineering Company. Within a few days of the amounts being credited, he withdrew almost all the money from the said account. B/362 and B/375. It was alleged that the Petitioner prepared two Banker’s cheques of Rs. 1,59,353/-and Rs. 2,47,297/-against those fraudulent TRs. and sent them to the Corporation Branch, Dharamtala for credit in the account of M/s. United Engineering Company. Within a few days of the amounts being credited, he withdrew almost all the money from the said account. iii) The third allegation was that the Petitioner had done all this with the active connivance of one Sri S.K. Boral, an officer of the SIB Division of the NS Road Branch who had signed all the fictitious TRs and as was confirmed by the handwriting expert as well as by the CBI in their report. 3. On the basis of the aforementioned irregularities, the Disciplinary authority stated that the Petitioner was prima facie liable for having committed acts of grave misconducts under para-5 (j) of the Memorandam of Settlement dated 4.10.2 002. He accordingly directed the Petitioner to submit a reply within 15 days. 4. The Petitioner thereafter moved a Writ Petition which was registered as W.P. No. 11208 (W) of 2005 praying for subsistence allowance as he had been put under suspension earlier. He also prayed for revocation of the order of suspension and for stay of the Departmental Proceedings which had been initiated on the basis of the said charge-sheet. 5. An Interim Order was passed on 28.6.2005 directing the authorities to pay subsistence allowance and to complete departmental proceedings within 3 months. 6. Accordingly, the authorities paid a sum of Rs. 2,89,990/-towards the arrears of subsistence allowance. In the meantime the Petitioner was directed by the Respondent No. 4 to be present for enquiry on 4.8.2005. It was informed that the said Respondent No. 4 had been appointed as the Enquiry Officer. According to the Petitioner however, the Respondent No. 4 did not have the jurisdiction to proceed. However, the enquiry proceeded and on 11.8.2005 a letter was issued by the Respondent No. 4 accusing the Petitioner that he had abstained from the enquiry held earlier. According to the Petitioner, the Respondent No. 4 had not been appointed by the disciplinary authority to conduct the enquiry and in para-19, it has been stated that at least he did not receive any such intimation. 7. According to the Petitioner, the Respondent No. 4 had not been appointed by the disciplinary authority to conduct the enquiry and in para-19, it has been stated that at least he did not receive any such intimation. 7. Various other facts have been included in the Writ Petition but the facts remains that an order of punishment as stated above was passed whereafter the appeal was taken out and the final order was also passed by the Appellate authority rejecting the Appeal. 8. The learned Counsel for the Petitioner has firstly attacked the charge-sheet itself by submitting that an incorrect statement has been made therein by which an impression has been sought to be conveyed that the handwriting expert had confirmed that the Petitioner had put his signature as HP Singha. Learned Counsel has referred to page 127 of the Writ Petition which is the opinion of the handwriting expert dated 28.11.1989 and as per the said document, it is noticed that what was stated was “it has not been possible to express any definite opinion regarding the authorship of the rest of the writings as they appear to be mixed writings” The report of the Enquiry Officer with regard to charge No. 1 is inter alia, that “Although as per the report of the Government Examiner of Questioned Document vide CBI letter No. DXC-94/89 dated 28.11.1989 (copy enclosed), no definite opinion was given by him under CSE’s signature dated 10.4.1989 which was witnessed by Deputy Manager (viz) State Bank of India, Calcutta”. 9. However if the entire report is read it will appear as follows:- “Moreover from the evidence of prosecution documents placed under PEX-5 and 5(ii), it has been confirmed that the two Banker’s cheque being No. 999030 and 176099 dtd 13.08.1988 and 27.08.1988 for Rs. 1,59,353/-and Rs. 2,47,297/-respectively were issued by SBI, N.S. Road Branch, Calcutta in favour of Corporation Bank, Dharamtalla street, Calcutta-700013 and duly collected through Calcutta Clearing House by Corporation Bank and cleared on 19.8.1988 and 1.9.1988 respectively and credited to CA No. 1554 of M/s. United Engineering Company. From the prosecution of evidence of documents marked under PEX-8(i), 8 (ii), 8(iii) and PEX-9(i) and 9(ii), it has been crystal clear that CSE has withdrawn from the above referred a/c a substantial portion of amount aggregrating Rs. From the prosecution of evidence of documents marked under PEX-8(i), 8 (ii), 8(iii) and PEX-9(i) and 9(ii), it has been crystal clear that CSE has withdrawn from the above referred a/c a substantial portion of amount aggregrating Rs. 4,06,100/-by different self cheques purportedly drawn by the CSE in the name of H.P. Singha as proprietor of United Engineering Company, out of the proceeds credited in account by dint of above referred Banker’s cheques issued by State Bank of India, Netaji Subhas Road Branch, Calcutta. Furthermore, corporation bank’s letter of proprietorship of m/s. United Engineering Company under the proprietor of Shri Haripada Singha together with the trade license certificate issued by Calcutta Municipal Corporation placed under PEX-10 and PEX-11 (i) and 11(ii) was ample proof that CSE and H.P. Singha is the one and same person. This had also been admitted by the CSE in writing on 11.4.1989 and also being witnessed by Officer(Vigilance), State Bank of India, Calcutta. Hence the charges under Serial No. (1) has since been proved exparte that the CSE is responsible for opening account with other Bank with falsely implicating his name and fictitiously operated in the said a/c leading to substantial loss to the bank.” (Quoted) 10. This Court exercises jurisdiction under Article 226. It cannot sit in appeal over questions of fact which have been decided in a duly constituted departmental proceedings. It is further evident from the report of the Enquiry Officer that there was ample proof to show that the charge-sheeted employee and HP Singha were one and the same person and that the Petitioner was responsible for opening an account with another bank by fictitiously operating the same leading to substantial loss to the Bank. Moreover the proceedings of the hearing (see page 123 of the Writ Petition) shows that the petitioner had acknowledged that on 16.3.1989 that the writings and the signature on the instruments were made by him. The relevant portions of the said proceedings held on 15.6.2006 reads as follows:- “The documents relates to SBI, N.S. Road Branch and are as follows:- 1. Documents marked PEX-6/2-(i) It is a Transfer responding (C.O.S. –271 x ) dated 9.8.1988 for Rs. 1,60,000=00 against payment of S/C No. B/362. On the face of it Shri Haradhan Bhattarcharya acknowledges on 15.3.1989 that the writings and the signatures of the instrument are done by him, which has been witnesses by me on 15.3.89. Documents marked PEX-6/2-(i) It is a Transfer responding (C.O.S. –271 x ) dated 9.8.1988 for Rs. 1,60,000=00 against payment of S/C No. B/362. On the face of it Shri Haradhan Bhattarcharya acknowledges on 15.3.1989 that the writings and the signatures of the instrument are done by him, which has been witnesses by me on 15.3.89. (ii) It is the list of other originating credits (COS-452) dated 9.8.1988 for Rs. 1, 60,000=00 against payment of S/C No. B/362. On the fact of it Shri Haradhan Bhattacharya acknowledges on 15.3.1989 that the writings and the signatures of the instrument are done by him, which has been witnesses by me on 15.3.1989. 2. Documents marked (PEX-7/2) (i) it is a Transfer responding (C.O.S. –271 x ) dated 23.8.1988 for Rs. 2,48,300=00 against payment of S/C No. B/375. On the face of it Shri Haradhan Bhattarcharya acknowledges on 16.3.1989 that the writings and the signatures of the instrument are done by him, which has been witnesses by me on 16.3.89. (ii) It is the list of other originating credits (COS-452) dated 9.8.1989 for Rs. 2,48,300=00 against payment of S/C No. B/375. On the fact of it Shri Haradhan Bhattacharya acknowledges on 16.3.1989 that the writings and the signatures of the instrument are done by him, which has been witnesses by me on 16.3.1989.” (Quoted) Under the circumstance and following the ratios laid down in the cases of (i) State Bank of India & Anr. Vs. Bela Bagchi & Ors. reported in (2005) 7 SCC 435 and (ii) Lalit Popli vs. Canada Bank & Ors. reported in (2003) 3 SCC 583 , this Court is of the view that the charge against the Petitioner being serious in nature, the doctrine of “proof beyond doubt”, while dealing with the cases of the Bank employees, has no application and that the preponderance of probabilities is necessary to arrive at a conclusion. As already stated above, the High Court while exercising jurisdiction under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of the principles of natural justice. As already stated above, the High Court while exercising jurisdiction under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of the principles of natural justice. In the same judgment at [(ii) supra], it has also been held that judicial review is not equivalent to adjudication of a case on merits as an appellate authority and, where findings of the disciplinary authority are based on some evidence, the Court or a Tribunal cannot re-appreciate evidence and substitute it by their own findings. 11. Under the circumstances, this Court is not inclined to interfere with the charge-sheet and/or the disciplinary proceedings. The Writ Petition is accordingly Dismissed. There shall be no order as to costs. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.