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Jharkhand High Court · body

2013 DIGILAW 206 (JHR)

Victor Francis v. United Commercial Bank, Kolkata

2013-02-08

SHREE CHANDRASHEKHAR

body2013
JUDGMENT: 1. Seeking quashing of order of punishment dated 09.06.2005, letter dated 30.01.2006 rejecting the appeal, letter dated 23.06.2006 dismissing the review petition and letter dated 02.07.2007 whereby reinstatement of the petitioner was refused, this writ petition has been filed by the petitioner. 2. The acts of commissions / omissions alleged to have been committed by the petitioner occurred when he was posted in ISL Extension Counter of Jharia Branch of UCO Bank. The petitioner was posted in the said ISL. Extension Counter from 03.12.2001. 3. It is the case of the petitioner that prior to his joining on 03.12.2001 in ISL. Extension Counter, Jharia, one Sri D. Ashok Kumar was posted as Officer In Charge and one Sri Sushil Kumar Singh, CAC cum Head Cashier was posted besides two Class IV staff. It is stated that on 30.04.2003, the petitioner attended the office and also discharged the duties of In Charge Officer of ISL Extension Counter where Sri Sushil Kumar Singh, CAC-cum-Head Cashier was also posted. The petitioner had to leave the office due to sudden illness of his mother and he took verbal permission from Sri Anant Prasad, Manager and Sri R.K. Dutta, Senior Manager. In view of the illness of his mother, the petitioner had to prepone his LTC which was approved from 03.05.2003. 4. It appears that Sri Sushil Kumar Singh CAC-cum-Head Cashier made a fraudulent withdrawal of Rs. 3 Lakhs on 03.05.2003 from a cheque issued on 29.04.2003. The said cheque was not issued by the petitioner. On 24.05.2003 and 29.05.2003 the above named Sushil Kumar Singh again made fraudulent withdrawals of Rs. 7 Lakhs and Rs. 10 Lakhs respectively. When this was discovered, a First Information Report was lodged on 08.05.2004 and Jharia P.S. Case No. 157 of 2004 was registered in which chargesheet was filed against Sushil Kumar Singh. The petitioner and other bank officials have been made witnesses in the said case. The petitioner was served chargesheet dated 20.05.2004. The petitioner submitted his reply on 11.06.2004 denying the allegations levelled against him. The petitioner and other bank officials have been made witnesses in the said case. The petitioner was served chargesheet dated 20.05.2004. The petitioner submitted his reply on 11.06.2004 denying the allegations levelled against him. In the departmental enquiry all 5 charges were found proved and the following punishment has been passed:- Charge No. I-Compulsory Retirement, Charge No. II-Basic Pay to be reduced by five stages in the present time Scale of pay for a period of five years, Charge No. III-Basic Pay to be reduced by five stages in the present time Scale of pay for a period of five years, Charge No. IV-Compulsory Retirement and Charge No. V-Compulsory Retirement 5. The appeal against the final order dated 09.06.2005 and the application seeking review of the said order have been dismissed and by order dated 02.07.2007, the petitioner was informed that his request for reinstatement has been refused. Aggrieved, the petitioner moved this Court by filing the present writ petition. 6. A counter affidavit has been filed by the respondents in which it has been stated that the petitioner was granted LTC from 05.05.2003 and not from 03.05.2003 as stated by the petitioner. The petitioner was on duty from 28.04.2003 to 30.04.2003 and he attended his duties. The petitioner was given full opportunity to defend his case at every stage. The petitioner has been found negligent towards his duties. He has been found to have violated Regulation 13 (1) of UCO Bank Officer Employees Conduct Regulation 1976. He has also been found guilty submitting wrong I.T.(4) and thus he has failed to ensure and protect the interest of the Bank. A rejoinder affidavit has been filed by the petitioner. 7. Heard learned counsel for the parties. The learned counsel for the petitioner has submitted that the petitioner has not been found guilty of any fraud or misappropriation. The chequebooks were in joint custody of the petitioner and the Head Cashier namely, Ashok Kumar Singh and the petitioner admittedly, left the bank on 29.04.2003 therefore, any fraud committed by the said Ashok Kumar Singh, the Head Cashier cannot be said to be facilitated due to any negligence on the part of the petitioner. He further submitted that in view of the fact that paragraph nos. He further submitted that in view of the fact that paragraph nos. 2022, 2829 and 3940 of the writ petition have not been specifically denied by the respondents, the stand of the petitioner should be accepted by this Court. He submits that in any event, the punishment awarded to the petitioner is grossly disproportionate to the alleged acts of commission and omission on the part of the petitioner and therefore, the final order of punishment dated 09.06.2005 requires interference by this Court. 8. Justifying the orders passed by the respondents, the learned counsel for the respondents submitted that this case does not warrant interference by this Court. The petitioner was offered full opportunity to defend himself and on a proper consideration of the evidences on record the order of punishment has been passed against the petitioner. He further submits that the scope of the Writ Court to interfere with the order of punishment passed in a departmental enquiry is extremely limited and in view of the established misconduct of the petitioner, no interference is required and the writ petition is liable to be dismissed. 9. From the impugned orders I find that the authorities have taken into consideration the Rules/Circulations/Instruction of the Bank with respect to duties performed by the employee. One such instruction is quoted below; “All chequebooks and loose leaves on hand should remain in the custody of officer-in-charge of Deposit Department during office hours in a locked box, which should be kept overnight in the strong room or in a rife proof safe/improved/cabinet. Officer entructed with chequebook should not keep the box/drawer containing cheque book open. Free access should not be allowed during working hours to member of the staff to the box /drawer in which chequebooks are kept for issuing to customer.” 10. The petitioner has been found allowing the said Sushil Kumar Singh easy access to the box / drawer in which cheque books were kept for issuing to customers due to which Sri Sushil Kumar Singh could take out the chequebook bearing no. 443921 to 443930. It has also been found that there is no requisitions slip of the chequebook last issued to the customer nor there is any letter for requisition of chequebook available in the bank record. The account holder Mrs. Mina Singh has not requested for issuance of a chequebook on 29.04.2003. 443921 to 443930. It has also been found that there is no requisitions slip of the chequebook last issued to the customer nor there is any letter for requisition of chequebook available in the bank record. The account holder Mrs. Mina Singh has not requested for issuance of a chequebook on 29.04.2003. The petitioner has been found indulged in various acts of commission and omission in the course of his duties due to which Sri Sushil Kumar Singh had easy access to the records/security articles in violation of the bank rules and procedures. The appellate authority as well as the reviewing authority both have rejected the application of the petitioner by speaking orders. Thus, I find that this is not a case in which the order of punishment has been passed taking into consideration some irrelevant material or relevant materials have not been considered. This is not the case of the petitioner that enquiry was conducted in violation of Principles of Natural Justice or that this is a case in which there is no evidence against the petitioner. 11. In “Om Kumar and ors. Vs. Union of India”, the Hon'ble Supreme Court has been pleased to observe :- “The quantum of punishment in disciplinary matters is primarily for the disciplinary authority to decide and the jurisdiction of the High Court under Article 226 of the Constitution of India or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well known principles known as Wednesbury Principles.” 12. A Constitution Bench of the Hon'ble Supreme Court in “State of Orrissa Vs. Bidyabhushan Mohapatra” ( AIR 1963 SC 779 ) has held that having regard to the gravity of the established misconduct the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226 of the Constitution of India. 13. The Hon'ble Supreme Court in the case of “Coimbatore District Central Cooperative Bank Vs. Coimbatore District Central Cooperative Bank Employees Association and Another” reported in 2007 4SCC 669 has quoted in paragraph no. 34 as under: “34. The Constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix in each case. It cannot be put in a straitjacket formula. 34 as under: “34. The Constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the Court must be satisfied that a case has been made out for exercise of power of judicial review. The Court observed that we are not unmindful of the development of the law that from the doctrine of “Wednesbury unreasonableness”, the court is leaning towards the doctrine of “proportionality”. But in a case of this nature, the doctrine of proportionality must also be applied having regard to the purport and object for which the Act was enacted.” 14. In view of the above I find no reason to interfere with the impugned orders. Accordingly, this writ petition is dismissed. 15. There shall however, be no order as to costs.