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Gauhati High Court · body

2014 DIGILAW 1022 (GAU)

KAILASH CH. SARMA v. PUNJAB NATIONAL BANK

2014-11-28

B.K.SHARMA

body2014
ORDER (CAV) 1. By means of this writ petition filed on 01.02.2008, the petitioner has challenged the Annexure-X order dated 27.12.2006, by which, pursuant to a departmental proceeding, the disciplinary authority imposed on him penalty of compulsory retirement in terms of Regulation 4 (h) of Punjab National Bank Officer Employees, (D&A) Regulations, 1977. The petitioner has also challenged the Annexure-XII communication dated 16.07.2007, by which the departmental appeal preferred by him against the penalty of compulsory retirement was rejected. It will be pertinent to mention here that during the pendency of the writ petition, the petitioner was communicated about the outcome of the review petition that he had submitted seeking review of the major penalty of compulsory retirement. By the said communication dated 05.05.2008, the petitioner was informed of the order of the reviewing authority dated 21.04.2008, by which the penalty of compulsory retirement imposed by the disciplinary authority and confirmed by the appellate authority was substituted by imposing the major penalty of “reduction of his salary to five stages lowering the time scale of pay till the date of his retirement in place of the major penalty of compulsory retirement”. It will also be pertinent to mention here that after imposition of the penalty of compulsory retirement and before filing of the writ petition, the petitioner attained the age of superannuation on 31.01.2008. Thus, by the impugned order of compulsory retirement substituted to that of reduction of salary to five stages lower in the time scale of pay had the effect in the service career of the petitioner for the period from 27.12.2006 to 31.01.2008. 2. In the writ petition, there is no formal challenge to the aforesaid order of the reviewing authority dated 21.04.2008 communicated vide letter dated 05.05.2008, but the said fact has been brought on record by the petitioner in the affidavit in reply filed on 27.03.2014. Coming to the facts of this case, the petitioner while was serving as Deputy Manager at Fancy Bazar Branch, Guwahati, was placed under suspension by Annexure-I order dated 03.07.2004 with immediate effect. The order was passed on the ground of alleged involvement of the petitioner in the fraud relating to several savings bank accounts while was serving in Zoo Road Branch during his incumbency from 13.07.1998 to 01.07.2002. 3. The order was passed on the ground of alleged involvement of the petitioner in the fraud relating to several savings bank accounts while was serving in Zoo Road Branch during his incumbency from 13.07.1998 to 01.07.2002. 3. The order of suspension was followed by the Annexure-II charge sheet dated 26.03.2005 issued under Regulation 6 of the Punjab National Bank Employee’s (Discipline & Appeal) Regulations, 1977. Altogether four charges were framed against the petitioner as enumerated in the statement of imputation of misconduct in support of the articles of the charges. For a ready reference, the statement of imputation of misconduct as was enclosed along with the charge sheet is reproduced below:- “STATEMENT OF IMPUTATION OF MISCONDUCT IN SUPPORT OF ARTICLES OF CHARGES AGAINST SHRI KAILASH CHANDRA SARMA, DY. MANAGER (U/S) BO:FANCY BAZAR, GUWAHATI PREV. BRANCH MANAGER AT EC-NIRD UNDER BO:ZOO ROAD, GUWAHATI Shri K.C Sarma, Dy Manager (U/S) BO:Fancy Bazar, Guwahati while working as Branch Manager at EC-NIRD under BO:Zoo Road, Guwahati from 13.07.1998 to 30.06.2002 is alleged to have committed the following lapses/irregularities in connivance with Shri Kabin Chandra Kalita, Head Cashier, EC-NIRD under BO: Zoo Road, Guwahati. CHARGE 1. Shri Sarma failed to ensure compliance of laid down guidelines and systems and procedures of the Bank. He failed to conduct checking of Ledger entries properly and morning checking of Ledgers. Shri Sarma in connivance with Shri Kalita, Head Cashier (U/s) has flouted Bank’s guidelines leading to several acts of perpetration of fraud at the branch. A. Shri Sarma being the incumbent In-charge of the branch did not ensure that the Deposit slips for cash received from the customers for Rs.10,000/- above were signed by both the receiving cashier and himself in terms of Insp. & Control Divn. Circular No.15/2001 dt. 25.07.2001. This negligence on the part of Shri Sarma facilitated Shri KC Kalita, Head Cashier to receive cash from the customers without accounting for the same in the Books of the Bank. To name a few of such A/Cs as under: Sl No SF A/C Name Dt. Of Credit Amount (Rs) 1 26 A. Begum 27.03.2002 24,000.00 2. 124 Shyam Konwar 03.02.2000 10,000.00 3. 124 Do 12.12.2001 20,000.00 4. 124 Do 15.12.2001 35,000.00 5. 124 Do 16.03.2002 10,000.00 B. Shri KC Kalita unauthorisedly made payment in several a/cs without making entry in the Ledger sheets. Of Credit Amount (Rs) 1 26 A. Begum 27.03.2002 24,000.00 2. 124 Shyam Konwar 03.02.2000 10,000.00 3. 124 Do 12.12.2001 20,000.00 4. 124 Do 15.12.2001 35,000.00 5. 124 Do 16.03.2002 10,000.00 B. Shri KC Kalita unauthorisedly made payment in several a/cs without making entry in the Ledger sheets. Shri Sarma being the incumbent In-charge passed these debit instruments under his signature without ensuring their posting in the Leger Sheets. These instruments were recorded in the Cash Book and in the Long Book but the same remained undetected as Shri Sarma did not conduct morning checking of Ledgers as per I&C Divn. Cir. No.9/98 dt.03.12.1998 and 8/99 dt.13.03.1999. Thus, Shri Kalita and Shri Sarma jointly perpetrated the fraud by non-posting of the debit instruments in the concerned Ledger Sheets. A few of such cases are mentioned below:- Sl No SF A/C NO NAME DT OF DEBIT AMOUNT 1. 207 Subash Jain 26.02.2000 16,750.00 2. 295 Atul Patwari 31.12.1999 12,000.00 3. 19 BN Sarma 18.03.2000 6,000.00 C. Shri Kalita has inflated the Ledger balance in the following a/cs through extension mistake. Shri Sarma failed to detect the extension mistakes while passing the said instruments and thereby allowed the fraud to take place. Sl No SF A/C NO NAME DATE AMOUNT 1. 15 Phatik Nath 31.08.2001 8,000.00 2. 167 Kaliram Terang 20.05.2002 9,000.00 3. 228 Basanti Boro 30.03.2002 2,000.00 D. Shri KC kalita fraudulently inflated the Ledger balances in several a/cs while posting the interest in the Ledger sheets and removed the preceding Ledger Sheets and did not keep the said Ledger Sheets in old record. The inflated balances in the Ledgers was detected while reconstructing the Statement of A/cs. Shri Sarma as incumbent In-charge of the branch along with Shri Kalita inflated the balances while carrying forward the same in the new Ledger Sheets and has destroyed Bank’s record willfully to avoid detection of fraud. To name a few: Sl No SF A/C NO NAME DATE AMOUNT LEDGER SHEET MISSING FROM 1. 269 Mantu Giri 04.04.2001 239,300/- Opening of A/c to 22.09.01 2. 317 SS AIRTSC 05.07.2002 109,243/- 27.06.2001 to 05.07.02 E. Shri Sarma passed the inflated interest amount posted by Shri Kalita in 5 A/Cs as detailed under, thereby draining Bank’s revenue to the tune of Rs.27,684.00. Sl No SF A/C NO NAME DATE AMOUNT INTT AMT INFLATED TO 1. 155 Rubu Barman 27.03.2002 8000.00 Rs.20,260/- from Rs.12,260/- 2. 317 SS AIRTSC 05.07.2002 109,243/- 27.06.2001 to 05.07.02 E. Shri Sarma passed the inflated interest amount posted by Shri Kalita in 5 A/Cs as detailed under, thereby draining Bank’s revenue to the tune of Rs.27,684.00. Sl No SF A/C NO NAME DATE AMOUNT INTT AMT INFLATED TO 1. 155 Rubu Barman 27.03.2002 8000.00 Rs.20,260/- from Rs.12,260/- 2. 228 Basanti Boro 27.03.2002 3268.00 Rs.5184/- from Rs.191/- 3. 269 Mantu Giri 22.03.2001 3200.00 Rs.5200/- from Rs.2000/- 4. 343 Chandana Barman 22.03.2001 1600.00 Rs.1627/- from Rs.27/- 5. 343 Chandana Barman 27.03.2002 11616.00 Rs.11,816/- from Rs.200/- F. In the following A/cs Shri Sarma has passed inflated amount posted by Shri Kalita in the Ledger Sheets thereby indulging in fraudulent activities Sl No SF A/C No Name Date Amount (Rs) Amount inflated to 1. 188 Naba Deka 22.02.2001 300.00 Rs.4770/- from Rs.4470/- 2. 261 Pankaj Deka 10.06.2002 30,000.00 Rs.70,000/- from Rs.40,000/- G. Shri Sarma authenticated a carry forwarded balance of Rs.204821.00 in place of Rs.45,899.00 in SF A/c No.228 of Basanti Boro on 29.05.2001 thereby fraudulently authenticating inflated balance by Rs.158,922.00. H. Shri Kalita has manipulated Books of A/cs of the branch through fictitious debit entries in the Ledger without any supporting voucher. Shri Sarma failed to detect such manipulation as he did not ensure proper and time balancing of Books. To name a few Sl No A/C No NAME DATE OF DEBIT AMOUNT 1. 26 A. Begum 04.04.2002 Rs.21,000/- 2. 124 Shyam Konwar 28.09.2001 Rs.10,000/- I. Shri Kalita deflated the Ledger balance through extension mistakes in the following a/cs to show the balances as tallied. Shri Sarma failed to detect the same through balancing and facilitated perpetration of fraud: Sl No A/C NO NAME DATE AMOUNT 1. 114 Nitai Haloi 21.09.2001 Rs.2000.00 2. 229 Kabin Ch Kalita (Staff) 24.02.2001 Rs.300.00 3.` 315 Lachit Boro 22.09.2000 Rs.1000.00 J. Shri Sarma passed debit instruments with lesser amount than the voucher amount in following a/cs and thereby has fraudulently inflated the Ledger balance Sl No SF A/C NO NAME DATE VOUCHER AMT.AS 1. 22 TM Devi 18.02.2002 Rs.6618/- instead of Rs.6648/- 2. 60 SK Dutta 14.10.1999 Rs.1500/- instead of Rs.2000/- K. Shri Sarma has passed a debit transfer voucher of Rs.850/- as a credit transfer voucher in the a/c No.24 of Shri K Sarma on 31.05.2001. Shri Sarma thereby has fraudulently inflated the balance in the a/c by Rs.1700/-. 22 TM Devi 18.02.2002 Rs.6618/- instead of Rs.6648/- 2. 60 SK Dutta 14.10.1999 Rs.1500/- instead of Rs.2000/- K. Shri Sarma has passed a debit transfer voucher of Rs.850/- as a credit transfer voucher in the a/c No.24 of Shri K Sarma on 31.05.2001. Shri Sarma thereby has fraudulently inflated the balance in the a/c by Rs.1700/-. L. Shri KC Kalita deflated the Ledger balance in the SF a/c no.362 of Shri LBB Singh on 16.08.2002 by Rs.14,000/- by not crediting the a/c in order to tally the balance. Shri Sarma as supervisory official did not rectify it and allowed the fraud to remain undetected. M. The manipulation in SF Balance Book started in the month of October, 1999 when in SF A/cv No.60 of Shri SK Dutta a Cheque of Rs.2000/- dt 14.10.1999 was posted as Rs.1500/- in Ledger, duly passed by Shri KC Sarma thereby making the Ledger excess by Rs.500/-. The same was tallied by manipulation in casting of balance in SF a/c no.156 and 176. Subsequently, in the month of Nov.99, Shri Kalita made fictitious entries in SF A/c Nos.315 and 30 without making any entries in Cash Book and Long Book. The balancing in Nov.99 was tallied by over writing/manipulation of balances of other a/cs. The chain of fictitious entries and manipulation in Ledger balances started in the month of Oct.’99 and continued thereafter with the active involvement of both Shri Kalita and Shri Sarma till its detection. Thus, Shri Sarma in collusion with Shri Kalita defrauded the Bank. CHARGE-2 As per Book of Instruments (Routine) Chapter XII, Schedule H & N, old record pertaining to SF Ledgers should be preserved for eight years. Shri Sarma did not ensure safe custody of Ledger Shets both Current as well as old Ledger Sheets and payment instruments as per laid down guidelines and procedures of the Bank. For example Bank’s records in the SF A/c No.124 of Shyam Konwar from 21.09.2000 to 19.04.2001 and in the SF A/c No.179 of Nirma Singh from 31.03.2000 to 02.04.2001 has not been preserved. CHARGE -3 Shri Sarma sanctioned a Demand Loan No.65 fvg. Shri Sailendra Nath Bhattacharjee against FD on 04.04.2001 for Rs.200,000/- without the knowledge of the depositor. The said loan was adjusted on 07.05.2001 by deposit of cash. The depositor in his letter dt. 24.06.2004 has refused that he has availed any such DL against the said FDR. CHARGE -3 Shri Sarma sanctioned a Demand Loan No.65 fvg. Shri Sailendra Nath Bhattacharjee against FD on 04.04.2001 for Rs.200,000/- without the knowledge of the depositor. The said loan was adjusted on 07.05.2001 by deposit of cash. The depositor in his letter dt. 24.06.2004 has refused that he has availed any such DL against the said FDR. Only duplicate copy of the cash payment voucher dt 04.04.2001 signed as SN Bhattacharjee is held in the record. The said signature of Shri Bhattacharjee differs from the specimen signature held on record. Neither the said DL document is enclosed with the cash deposit voucher dt 07.05.2001 nor the same is available in the branch record. FDR found renewed on 26.12.2001 which do not have any lien marking or discharge of the depositor. There was no lien marking in the FD Ledger on the dt. of advance. The above facts establish that Shri Sarma in connivance with Shri Kalita has fraudulently raised a DL for Rs.200,000/-. CHARGE-4 Shri Sarma passed debit instruments in the SF A/c No.155 of Ruba Barman on 31.12.1999 for Rs.150,000/- without getting the same posted in the concerned Ledger Sheet though the same was entered in the Cash Book and Long Book. The said instrument is not available in branch record. Thus, Shri Sarma in connivance with Shri Kalita has defrauded the Bank.” 4. Along with the charge sheet, the petitioner was also provided with the list of documents relating to the charges. In response of the charges leveled against the petitioner, he submitted his written statement of defence vide Annexure-III dated 19.05.2005. In the said written statement, the petitioner denied the charges and attributed the misconduct to one of his colleagues, namely, Sri K.C Kalita, Head Cashier, who was also placed under suspension and taken up for departmental proceeding. However, some of the defence pleas as indicated in the written statement are quoted below:- “1.SB A/C 207 Subash Jain The concerned cheque for Rs.16,750/- was verified. The signature appearing on the cheque appears to be that of the undersigned. I do not understand how it escaped my attention. It must be the intention of the cashier for not posting the amount in the ledger, the reason must be definitely known to him, which was however not detected by me. The signature appearing on the cheque appears to be that of the undersigned. I do not understand how it escaped my attention. It must be the intention of the cashier for not posting the amount in the ledger, the reason must be definitely known to him, which was however not detected by me. It is of course true that I could not conduct morning checking on regular basis as I was running from one place to another for mobilization of deposit. But Sir, it is not at all t rue that I had any role to connive with the Head Cashier for preparation of fraud. SB A/C 19 BN Sarma The debit instrument of Rs.6000/- dated 18.03.2000 was passed erroneously without entering in the Ledger folio. However the amount got recovered subsequently, when the mater came to light. It is true that the morning checking was not done by the undersigned regularly, as prescribed. But Sir, it is not a fact that I have jointly with the Head Cashier, perpetrated any fraud. SB A/C 228 Basanti Boro Here again I regret sincerely for not being able to detect the extension mistake in the account. The change was in the handwriting of the cashier concerned and authenticated by himself. Charge-3 With the consent of the depositor D/L of Rs.2,00,000/- was allowed to a third party on 04.04.2001 against the security of F/D of the depositor. The said loan was adjusted on 07.05.2001 with up to date interest accrued thereon. However no lien was marked on F/D. Whatever the statement was given on 24.06.2004 (not known to me) as reported in the charge sheet Sri Bhattacharya was forced by some officers to give in writing, he naturally feared at that time as stated by him now while contacted by the undersigned. Hence, I may kindly be absolved of this charge.” 5. Being not satisfied with the aforesaid written statement of defence, the disciplinary authority decided to hold an enquiry against the petitioner in respect of the charges leveled against him and accordingly appointed Enquiry Officer and Presenting Officer. The petitioner was also apprised of his right to take the assistance of any Officer/Employee of the Bank. 6. Being not satisfied with the aforesaid written statement of defence, the disciplinary authority decided to hold an enquiry against the petitioner in respect of the charges leveled against him and accordingly appointed Enquiry Officer and Presenting Officer. The petitioner was also apprised of his right to take the assistance of any Officer/Employee of the Bank. 6. In due course, the Enquiry Officer conducted the enquiry and on conclusion of the same, submitted the enquiry report dated 21.08.2006, copy of which was furnished to the petitioner advising him to submit his representation against the same. Accordingly, the petitioner submitted his written representation vide Annexure-IX dated 06.09.2006. Thereafter, the disciplinary authority in consideration of the entire materials on record including the evidence adduced by the petitioner and the representation submitted against the enquiry report, decided to impose the major penalty of compulsory retirement and the same was communicated to the petitioner vide the impugned Annexure-X letter dated 27.12.2006. Thereafter, the departmental appeal preferred by the petitioner was also rejected by the Annexure-XII order dated 27.06.2007. However, after filing of the writ petition, the major penalty of compulsory retirement has been substituted to that of the major penalty of reduction of his salary to five stages lowering the time scale of pay till he retired from service on attaining the age of superannuation on 31.01.2008. 7. I have heard Mr. D.K. Das, learned Senior Counsel, assisted by Ms. J. Buragohain, learned counsels for the petitioner and so also Ms. S. Sarmah, learned counsel representing the respondent bank. I have also perused the entire materials on record. 8. As to what are the charges leveled against the petitioner has been noted above. Although generally denied the charges, but as noted above he also admitted his failure to conduct morning checking on regular basis. He also expressed his regret for not being able to detect the extension mistake in the account. As regards the Charge No.3, it was the plea of the petitioner that with the consent of the depositor, he sanctioned the demand loan against the No FDR and the same was allowed to a 3rd party. He however, admitted that no lien was marked on the FD. The Enquiry Officer in his report held the petitioner guilty of the Charge No.1 and Charge No.3. He however, admitted that no lien was marked on the FD. The Enquiry Officer in his report held the petitioner guilty of the Charge No.1 and Charge No.3. Charge No.1 is divided to several parts ranging from Charge No.1 A to M. The Enquiry Officer found the petitioner guilty of Charge No.1 B (partly); 1C; 1H; 1I and 1K. He also found the petitioner guilty of Charge No.3. Relevant portion of the enquiry report are quoted below:- “ASSESMENT OF EVIDENCE AND FINDINGS CHARGE 1B However, the CO in his defence referred DE 2 i.e. the withdrawal slip dt.31.12.1999 for Rs.12,000/- which was filled up by Shri K.C Kalita, Cashier in charge and accordingly the payment was made by Shri Kalita but it is not established in the enquiry proceedings who passed the cheque for payment. Regarding the amount of Rs.6000/- in the SF A/c No.19 of BN Sharma, was recovered subsequently (ME 27/3) CO in his written brief admitted that he did not conduct morning checking regularly as he some time used to remain busy for mobilizing deposits. For mobilizing deposits, the then RM appreciated Sri Sarma vide letter dated 06.12.2001 for acquiring substantial amount of Govt. Deposits. In view of the facts stated above, I am of the opinion that Charge 1 B is Partly proved i.e. proved to the extent that Sri Sarma did not conduct morning checking of ledgers regularly, reasons are as under:- 1. Debit instruments, cash book and long book of relevant dates were not produced in the enquiry proceeding. 2. Ledger sheet of demand loan not produced. 3. PO failed to establish who passed the instruments. ASSESMENT OF EVIDENCE AND FINDINGS CHARGE 1C The PO in his written brief simply referred ME No.1, 8, 10 and statement of defence dated 19.05.2005 without placing any arguments. ME-1 to 1(2), ME-8 to 8(5) and ME-10 to 10(2) are the ledger sheet of SF A/C No.15- Phatik Nath, SF-167 of Ksaliram Terang and SF A/C No.228 of Basanti Boro respectively, which clearly established that there were extension mistake in the ledger as per charge sheet. Though PO did not produce any valid evidence to prove that Shri Sharma passed the instruments as mentioned in the Charge Sheet but since Shri Sharma is the only one officer in the Extension Counter it is natural that all those instruments were passed by the CO. Though PO did not produce any valid evidence to prove that Shri Sharma passed the instruments as mentioned in the Charge Sheet but since Shri Sharma is the only one officer in the Extension Counter it is natural that all those instruments were passed by the CO. Moreover, the CO in his reply to the charge sheet admitted that he failed to detect the extension mistakes in the accounts. In view of the facts state above I am of the opinion that Charge 1 C is PROVED. ASSESMENT OF EVIDENCE AND FINDINGS CHARGE 1H SF A/C 88. The mistake was not an intentional one and the difference of Rs.300/- as recovered from the depositor. SF A/C 261. The posting of Rs.70, 000/- was authenticated by the undersigned based on original vouchers. After the vouchers were posted, and authenticated, probably Sri Kabin Kalita destroyed the same. He prepared a fresh voucher in his own handwriting for Rs.40, 000/- and placed the same on record. He thus misappropriated the difference amount of Rs.30,000/-. The position is evident from the document marked ME-30 which does not bear my signature as authorized official. Thus the fraudulent activity was on the part of Sri Kabin Chandra Kalita, then Head Cashier and not on me as alleged, I request you to quash aside the charge. ME-7 is the ledger sheet of SF A/c No.124 Shyam Konwar which shows that on 28.09.2001 a cheque No.340483 of Rs.10,000/- was passed for payment whereas it has got no reflection in the cash book (ME-47) and long book (ME-48). Thus the entry is a fictious one. In the enquiry proceedings it is not established, who passed/released the cheque from the ledger. ME-4 is the ledger sheet of SF A/c No.26 Arifa Begum showing that on 04.04.2002 an amount of Rs.21,000/- was debited leaving a balance of Rs.73.85 in the a/c, but in the cash book ME-5 the entry of Rs.21,000/- is not found. Thus it is evident that there were manipulations in the ledger through fictious debit entry. The pleas taken by CO in his written brief as well as in his reply to the charge sheet is not acceptable to me because had the balancing of ledgers have been cast and tallied as per rules of the Bank the manipulation in the ledger should have come into light. The pleas taken by CO in his written brief as well as in his reply to the charge sheet is not acceptable to me because had the balancing of ledgers have been cast and tallied as per rules of the Bank the manipulation in the ledger should have come into light. Thus Shri Sarma failed to detect the fictious debit entry made by Shri Kalita. Hence, I am of the opinion that CHARGE 1H IS PROVED. ASSESMENT OF EVIDENCE AND FINDINGS CHARGE 1-I The PO in his written brief referred ME-6, 11, 16 and reply to the charge sheet dated 19.05.2005. He did not place any arguments. ME-6, 11 & 16 are the ledger sheets of SF A/C No.114, 229 and 315 respectively, depicting that Sri Kalita deflated the ledger balance through extension mistakes in the accounts mentioned in the charge sheet which CO did not deny in his written brief rather he took the plea that he could not detect the mistakes as the balancing was cast and tallied by his only staff, Sri Kalita and put before him for signature and accordingly he acted in good faith. The pleas taken by the CO in his written brief and reply to the charge sheet is not tenable because he put his signatures on the balance without verifying the same. If he acted as per guidelines of the bank the fraudulent act of Sri Kalita could have been identified at the time of tallying balances in the month end. Hence, I am of the opinion that Charge-1(I) is PROVED. ASSESMENT OF EVIDENCE AND FINDINGS CHARGE 1K The PO in his written brief only referred ME-3 and reply to the charge sheet dated 19.05.2005. He did not place any arguments in support of the charge. ME-3 to 3(1) is the ledger sheet of SF A/c No.24 of K Saran which reveals that on 31.05.2001 an amount of Rs.850/- has been posted in the credit column of the ledger by giving a narration “To demand loan”. As per narration the amount should have been posted in the debit column of the ledger instead of credit column and balance should have been decreased instead of increasing. In the enquiry proceedings it is not established who passed the voucher of Rs.850/- but CO in his reply to the charge sheet stated, “The SB A/c No.24 relates to Sri K Saran and not Sarma. In the enquiry proceedings it is not established who passed the voucher of Rs.850/- but CO in his reply to the charge sheet stated, “The SB A/c No.24 relates to Sri K Saran and not Sarma. The difference has since been got recovered and corrected. The mistake is not intentional. From the statement of CO it can be concluded that he passed the cheque. Hence, I am of the opinion that the CHARGE IS PROVED. ASSESMENT OF EVIDENCE AND FINDINGS CHARGE -3 The CO in his reply to the Charge sheet dt.19.05.2005 stated that the loan was given to a third party but there is no evidence produced in the enquiry proceedings in this regard. The demand loan voucher ME 18, the Cash pay-in-slip dt.07.05.2001 ME-22 and ledger folio of demand loan ME-25 clearly show that the loan was made to have been given to Shri S.N. Bhattacharjee. So involvement of 3rd party in the demand loan is not there. The demand loan account was opened and filled up by Shri KC Sarma in his own handwriting in the ledger and that also shows that the loan was made in the name of Shri SN Bhattacharjee and no other person. The handwriting in the ledger was identified to be of Shri Sarma by MW-1. The pleas taken by CO are not acceptable to me in view of the facts stated above. Hence, I am of the opinion that THE CHARGE 3 IS PROVED.” 9. After the aforesaid findings recorded by the Enquiry Officer in his enquiry report, the petitioner was furnished with the copy of the same asking him to submit his representation and he accordingly submitted. One of the defence he had advanced in his representation was that all the original accounts were adjusted in normal course of deposit of cash. Being not satisfied with the defence plea advanced in the representation, the disciplinary authority imposed the major penalty of compulsory retirement and the same was confirmed by the appellate authority. As noted above, the said penalty of compulsory retirement, however, has been substituted by another major penalty of reduction in the time scale of pay by five stages. 10. Mr. Being not satisfied with the defence plea advanced in the representation, the disciplinary authority imposed the major penalty of compulsory retirement and the same was confirmed by the appellate authority. As noted above, the said penalty of compulsory retirement, however, has been substituted by another major penalty of reduction in the time scale of pay by five stages. 10. Mr. Das, learned counsel for the petitioner in reference to the charges leveled and the evidence adduced by the petitioner during enquiry, submitted that the material witness relating to Charge No.3 having not been examined in the enquiry proceeding, the said charge cannot be said to have been established. He also submitted that once the Charge No.3 is held not established, the petitioner will get due benefit in respect of other allegations of the Charge No.1, in view of the findings recorded by the reviewing authority. He placed reliance on the decision of the Apex Court reported in (1999) 2 SCC 10 [Kuldeep Singh –vs- Commissioners of Police and others]. 11. Countering the above argument, Ms. S. Sarma, learned counsel representing the respondent bank submitted that once the confidence reposed on a bank employee is lost, he/she cannot be retained in service. She submitted that there being overwhelming evidence towards establishing the charges also proved in the enquiry, there cannot be any re-appreciation of the said evidence sitting on appeal over the same and also the findings recorded by the enquiry authority, disciplinary authority; appellate authority and the reviewing authority. She submitted that although the Charge No.2 and 4 could not be established in the enquiry, but any one of the charges which stood established in the enquiry was enough to impose major penalty. According to her, the petitioner should consider himself lucky to go away with the penalty of compulsory retirement later on substituted to reduction in the time scale of pay. According to her, having regard to the gravity of the charges, it was a fit case for imposition of penalty of dismissal and/or removal from service. In support of her argument, she placed reliance on two decisions of the Apex Court reported in (1996) 9 SCC 69 [Disciplinary Authority –cum- Regional Manager and others –vs- Nikunja Bihari Patnaik] and (2005) 7 SCC 435 [State Bank of India and another –vs- Bela Bagchi and others]. 12. In support of her argument, she placed reliance on two decisions of the Apex Court reported in (1996) 9 SCC 69 [Disciplinary Authority –cum- Regional Manager and others –vs- Nikunja Bihari Patnaik] and (2005) 7 SCC 435 [State Bank of India and another –vs- Bela Bagchi and others]. 12. Throughout the writ petition, there is no allegation of any procedural irregularity in conducting the enquiry. What has been emphasized is that the petitioner being busy with other works, at times, he could not make the required checking of entries. According to the petitioner, it was the other incumbent, namely, K.C Kalita, who was responsible for the transactions and the fraud committed on the bank. This aspect of the matter finds mention in the written statement, which the petitioner had submitted in response to the charge sheet. 13. As to what are the findings of the Enquiry Officer has been noted above. One of the defence advanced by the petitioner was that agreeing to anything while submitting defence statement cannot be a part of the enquiry proceedings (referred the case of defence-Charge-1B). While assessing the evidence and recording findings in respect of the said charge, the Enquiry Officer in reference to the written brief of the Presenting Officer referred to the statement of the petitioner accepting the charge vide his statement of defence. As quoted above (enquiry report), the petitioner in his written brief admitted that he did not conduct morning checking regularly as he used to remain busy for mobilizing deposits. Same is the defence in respect of the other allegations relating to article of charge No.1 as noted above. As regards the Charge No.1C, the defence of the petitioner has also been noted above. According to him, the loan was given to a 3rd party against the particular FDR and not to the depositor. However, he failed to produce any evidence to establish that the loan was extended to a 3rd party. 14. As discussed in the enquiry report, the demand loan voucher (ME-18); Cash-pay-in-slip dated 07.05.2001 and the Ledger folio of the demand loan (ME-25) clearly depicted that the loan was shown made to the FDR holder Sri Sailendra Nath Bhattacharjee and not to any 3rd party. 14. As discussed in the enquiry report, the demand loan voucher (ME-18); Cash-pay-in-slip dated 07.05.2001 and the Ledger folio of the demand loan (ME-25) clearly depicted that the loan was shown made to the FDR holder Sri Sailendra Nath Bhattacharjee and not to any 3rd party. The demand loan account was opened and filled up by the petitioner in his own handwriting and the account was made in the name of said Sri Sailendra Nath Bhattacharjee and no other person. There was no denial on the part of the petitioner about his handwriting in the said documents, which were also identified to be that of the petitioner by the management witness one Sri K.C Talukdar, the then Senior Manager of Zoo Road Branch. From the evidence on record, the Enquiry Officer found that non making of lien on the face of FDR and on Ledger account clearly showed that the FDR was not available and that was also not available on Ledger account, which was nothing but an act of evasion of detection subsequently. 15. As noted above, the petitioner in his written brief had contended that his written statement of defence dated 19.05.2005 should not be given any cognizance because the same was submitted in a hurry. Such a defence cannot be accepted. The loan account was adjusted on 07.05.2001 (ME 22) by cash deposit. The voucher was prepared by none other than the petitioner and the same was also identified by MW-1 during the course of enquiry on 02.03.2006. It is in these circumstances, the above noted finding was recorded by the Enquiry Officer towards holding that the article of charge No.3 stood proved in the enquiry. 16. The decision on which the learned counsel for the petitioner has placed reliance, namely, Kuldeep Singh (Supra) is primarily to emphasis that judicial review under Article 226 of the Constitution of India in respect of a departmental enquiry is not totally barred. It was held in the said case that while it is true that the High Court under Article 226 of the Constitution would not interfere with the findings recorded at the departmental enquiry and that the Court cannot sit on appeal over such findings assuming the role of an appellate authority, but the power of judicial review is available if the findings recorded are based on no evidence or utterly perverse. There is no quarrel with the said proposition of law. However, the learned counsel for the petitioner could not show anything as to how the findings recorded by the Enquiry Officer, the Disciplinary Authority, the Appellate Authority and the Reviewing Authority are based on no evidence and/or are perverse. 17. Learned counsel representing the respondent bank has referred to the decision in Nikunja Bihari Patnaik (Supra), so as to emphasis that proof of loss resulting in any bank transaction is not necessary and that what is required to be considered in respect of a bank employee and for that matter any public servant is as to whether he had acted beyond his authority so as to attract misconduct. That was a case relating to an employee of the Central Bank of India and the Apex Court was concerned with his misconduct. He had allowed over drafts or passed cheques involving substantial amounts beyond his authority. It was held that such acts could not be treated merely as errors of judgment. 18. In Bela Bagchi (Supra), on which the learned Counsel for the respondent bank has placed reliance, the Apex Court has emphasized that a bank employee has to exercise a higher degree of honesty and integrity. Absence of any loss to the bank is no defence. In paragraph 15 of the judgment, it was observed thus:- “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. The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating wit5hin 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. The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating wit5hin 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.” 19. Learned counsel for the petitioner submitted that in absence of any evidence adduced by the FDR holder i.e. the depositor, the charge No.3 could not have been said to be established. The fact of the matter is that the entire documents relating to the charge exhibited and proved in the enquiry and as discussed above clearly pointed out the guilt on the part of the petitioner. He also failed to identify any person in respect of his stand that the loan was extended to a 3rd party. Even in case of non examination of the author of a document, it was held by the Apex Court in Director General ICMR –vs- Dr. Anil Kumar Ghosh, reported in (1998) 7 SCC 97 that the author of the documents which were produced during enquiry and were proved need not be examined. That was a case of initiation of disciplinary enquiry against the respondent for wrongly claiming house rent allowance. When the documents produced during enquiry clearly established the charge, it was held that non-examination of the author of the documents was inconsequential. 20. In the instant case, apart from the fact that the petitioner himself could not identify as to who was the 3rd party to whom the loan was allegedly extended, all the documents pertaining to the Charge No.3 clearly established the illegality committed by the petitioner. It was on the basis of the complaint lodged by the depositor the illegality was detected. It was immaterial that the amount in question was liquidated by cash deposit subsequently by the petitioner. As has been held by the Apex Court in State of Tamilnadu –vs- K. Guruswamy, reported in (1996) 7 SCC 114 , that in case of charge relating to corruption, the penalty of dismissal and nothing less is the appropriate punishment. It was immaterial that the amount in question was liquidated by cash deposit subsequently by the petitioner. As has been held by the Apex Court in State of Tamilnadu –vs- K. Guruswamy, reported in (1996) 7 SCC 114 , that in case of charge relating to corruption, the penalty of dismissal and nothing less is the appropriate punishment. In Additional District Magistrate –vs- Pravakar Choturvedi, reported in (1996) 2 SCC 12 , the Apex Court held that the penalty of dismissal for temporary misappropriation of an amount of Rs.21,000/- was not disproportionate to the gravity of the offence. 21. The expression “sufficient evidence” postulates existence of some evidence which links the charged officer with the misconduct alleged against him. As noted above, it is not the case of the petitioner that there was any procedural irregularity in conducting the enquiry and that it is a case of no evidence and/or the findings recorded by the authorities are perverse. All the authorities, namely, Enquiring, Disciplinary, Appellate and Reviewing, after appreciating the evidence on record having held the petitioner guilty of Charge No.1 (Partly proved) and Charge No.3, this Court exercising its power of judicial review under Article 226 of the Constitution of India, cannot sit on appeal over the said findings and/or re-appreciate the evidence like an appellate authority, so as to return another finding other than the findings recorded by the said authorities. 22. It has been held in State Bank of India –vs- S.N. Goyal, reported in (2008) 8 SCC 92 that temporary misappropriation of customer’s money by a bank Manager is a serious misconduct warranting removal from service. Emphasizing on relationship between banker and customer, it was observed that the same is of trust. It was further observed that the employees of bank in particularly Managers are expected to act with absolute integrity and honesty in handling customers/borrowers money and that even a temporary misappropriation of such money is a serious matter. As regards the penalty imposed and the interference thereof, it was held that it will not be justified to interfere with the penalty imposed exercising writ jurisdiction when the enquiry was fair and proper and the finding of guilt is valid. In paragraph 41 of the judgment, the Apex Court observed thus:- “41. At the relevant point of time the respondent was functioning as a Branch Manager. In paragraph 41 of the judgment, the Apex Court observed thus:- “41. At the relevant point of time the respondent was functioning as a Branch Manager. A bank survives on the trust of its clientele and constituents. The position of the Manager of a bank is a matter of great trust. The employees of the bank in particular the Manager are expected to act with absolute integrity and honesty in handling the funds of the customers/borrowers of the bank. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment. When a borrower makes any payment towards a loan, the Manager of the bank receiving such amount is required to credit it immediately to the borrower’s account. If the matter is to be viewed lightly or leniently it will encourage other bank employees to indulge in such activities thereby undermining the entire banking system. The request for reducing the punishment is misconceived and rejected.” 23. Learned counsel for the petitioner on being pointed out that leaving aside the Charge No.3, even the other elements of Charge No.1 have been established in the enquiry, then also the penalty imposed on the petitioner with subsequent substitution by the reviewing authority would be justified, it was submitted that charges under Article No.1 was diluted in view of the findings recorded by the reviewing authority. To appreciate the said submission, let me discuss about the order passed by the reviewing authority, which is also not under any formal challenge in the writ petition, about which mention has been made above. The substitution of penalty of the compulsory retirement to that of reduction in the time scale of pay by five stages by the reviewing authority is in reference to the primary responsibility of the Head Cashier for the fraudulent activities. However, the petitioner has never been absolved of the charges leveled against him. While discussing about the charges leveled against the petitioner including the Charge No.3, the reviewing authority has recorded the following observation and finding:- “I have examined the points raised by Shri Sarma in his review petition along with records of the case and observed that:- The enquiry was conducted as per the provisions of PNB Officer Employees (D&A) Regulations-1977 and the petitioner was provided adequate opportunities for his defence. The lapses stood established in the enquiry on the basis of proper analysis of the evidence on record. The petitioner failed to conduct proper morning checking in the Extension Counter and to detect various fraudulent entries/manipulations made by Sh. KC Kalita, Head Cashier in the books of bank jeopardizing the bank’s interest. His contention that he was not connected with any misappropriation of money does not belief the Charges of not observing the bank’s guidelines by him as Incumbent of EC-NIRD due to which the fraud took place causing loss to the extent of Rs.45.73 lac. The plea taken by the petitioner in respect of article of Charge III is not tenable as the said article has been held as proved based on detailed assessment of evidences in support thereof. It is a matter of record that MW-2 was not produced in the enquiry but no prejudice was caused to defence due to non-appearance of the Management Witness. During the preliminary investigation conducted by Shri B C Talukdar, Manager, letter dated 24.06.2004 was given by Mr. Bhattacharjee stating that he had not raised any demand loan. The records reveal that the petitioner in his statement of defence stated that the demand loan was allowed to a third party with the consent of the depositor but it was confirmed in the enquiry that signature of the depositor on demand loan voucher did not tally with signature on account opening form of FDR. Taking on overall view of the case including the fact that the Head Cashier was primarily responsible for fraudulent activities, I am of the opinion that ends of justice would be met by imposing major penalty of “Reduction of his salary to five stages lower in the time scale of pay till the date of his retirement” in place of the major penalty of “Compulsory Retirement” imposed by the Disciplinary Authority and confirmed by the Appellate Authority. There is no change as to the decision of the Disciplinary Authority about treatment to the suspension period. The petitioner has already attained the age of superannuation on 31.01.2008, hence his terminal dues will be settled after taking into consideration of the modified penalty but no salary will be paid for the intervening period from his compulsory retirement till his attaining the age of superannuation. I order accordingly and Shri Sarma be informed.” 24. The petitioner has already attained the age of superannuation on 31.01.2008, hence his terminal dues will be settled after taking into consideration of the modified penalty but no salary will be paid for the intervening period from his compulsory retirement till his attaining the age of superannuation. I order accordingly and Shri Sarma be informed.” 24. From the above reading of the findings recorded by the reviewing authority, it cannot be said that the petitioner has been absolved of the Article of Charge No.1. The reviewing authority upon discussion of all the relevant aspects of the matter took a lenient view of the matter and decided to impose a major penalty of reduction in pay by five stages in lieu to compulsory retirement. Such findings of fact and the exercise of discretion cannot be interfered with exercising power of judicial review under Article 226 of the Constitution of India. It is once again emphasized in reference to the decision of the Apex Court in BSNL –vs- Bhurumal, reported in (2014) 7 SCC 177 that findings of fact are not to be interfered with by the High Court under Article 226 of the Constitution of India. Interference permissible only in case the evidence are totally perverse or based on no evidence. Insufficiency of evidence cannot be a ground to interdict the findings as it is not the function of this Court to re-appreciate the evidence. 25. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed, without, however any order as to costs.