Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 672 (GAU)

Sailendra Namasudra v. UCO Bank

2014-06-25

K.SREEDHAR RAO

body2014
JUDGMENT K. Sreedhar Rao, J. 1. Heard Mr. J.P. Das, learned counsel for the petitioner and Mr. P.C. Goswami, learned counsel for the respondents. The petitioner was working as an Assistant Manager in UCO Bank at Tamulpur Branch. While working as such, during the period from 23.07.1997 to 22.01.2004 there were allegations of misconduct against the petitioner. 2. The following article of charges and statement of allegations were issued against the petitioner: Article of Charges Sri S. Namasudra (PFM No. 35267) while functioning as Office at Tamulpur branch from 23.07.1997 to 22.01.2004 had indulged in several acts of omission and commission for which he is hereby charged as under: "1. Sri S Namasudra had indulged in fraudulent transactions with malafide intention in several SB accounts of Tamulpur branch which has cause financial loss to the bank. He has thus failed to discharge his duties with utmost integrity, honesty which is in violation of Regulation-3 of UCO Bank Officer Employees (Conduct) Regulations, 1976 as amended. 2. Sri S. Namasudra had intentionally issued fictitious FDR/KYs without debiting any account. Thus he had most irregularly and fraudulently abused his official position which is in violation of Regulation-3 of UCO Bank Officer Employees' (Conduct) Regulations, 1976 as amended. 3. Sri S. Namasudra closed one LBY A/C without adjusting the loan against it. He failed to ensure and protect the interest of the bank which is in violation of regulation-3 of UCO Bank Officer Employees' (Conduct) Regulations, 1976 as amended." Statement of Allegation 1. Sri S. Namasudra (PFM No. 35267) while functioning at Tamulpur branch as Officer from 23.07.1997 to 22.01.2004 had indulged in various acts of omission and commission in the course of his duties. He had made fictitious credits in several SB A/Cs. And also passed withdrawals slips and debit vouchers without debiting the respective SB Accounts. This is total violation of Bank's rules and procedure. His intention was malafide and deliberate causing loss to the bank. The following details are some transactions where Sri S Namasudra most irregularly and fraudulently committed breach of faith in the performance of his duties. (a) Sri S. Namasudra authenticated the following credit entries in the SB ledger of A/C No. 7280 of Rabi Ram Boro, without any voucher, without any entry in the Cash Scroll or in the Cash Receipt Book. (a) Sri S. Namasudra authenticated the following credit entries in the SB ledger of A/C No. 7280 of Rabi Ram Boro, without any voucher, without any entry in the Cash Scroll or in the Cash Receipt Book. (b) Sri S. Namasudra passed the following withdrawal slips for payment without debiting the respective SB A/Cs in the ledger. Sufficient balance was also not available in the A/C. When corrections were made later and the accounts were debited the balances in the accounts became overdrawn. This is a deliberate act on the part of Sri Namasudra to defraud the bank. (c) Sri S Namasudra authenticated the balance in the SB A/C. No. 5546/6 of NC Brahma on 25.072002 where the balance was wrongly drawn as Rs. 82,297/- instead of Rs. 72,297/-. Later when corrections were made the account showed overdrawn by Rs. 7026/- as of 11.01.2005. Sri Namasudra was negligent in performing his duties thus leading to financial loss to the Bank. 2(a) Sri S. Namasudra had prepared a debit voucher of Rs. 20,000/- in SB 741/1 of Sri C.M. Das on 13.05.03 without any authority letter from the customer Sri C.M. Das and also prepared the contra credit KY voucher for preparation of KY No. 24/03-04 of Rs. 20,000/- in the name of Sri c.m. Das. The KY ledger entry was also made by Sri S Namasudra and authenticated by him. But in a most fraudulent and irregular manner and with malafide intention he had not debited SB 741/1 of Sri C.M. Das for Rs. 20,000/- on 13.05.2003 for making the relative KY No. 24/03-04. He did not ensure that the KY Credit Voucher (DT-2) was signed by any Officer of the branch before making the KY. The related DT-2 was also not signed by any Officer. 2(b) Sri S. Namasudra had prepared a debit voucher of Rs. 20,000/- in SB 6051/7 of R. Bibi on 28.02.2003 without any authority letter from the customer R. Bibi and also prepared the contra credit KY voucher for preparation of KY No. 126/02-03 of Rs. 20,000/- in the name of Sri R Bibi. The KY ledger entry was also made by Sri S Namasudra and authenticated by him. But in a most fraudulent and irregular manner with malafide intention he has not debited SB 6051/7 of R. Bibi for Rs. 20,000/- on 28.02.2003 for making the relative KY No. 126/02-03. 20,000/- in the name of Sri R Bibi. The KY ledger entry was also made by Sri S Namasudra and authenticated by him. But in a most fraudulent and irregular manner with malafide intention he has not debited SB 6051/7 of R. Bibi for Rs. 20,000/- on 28.02.2003 for making the relative KY No. 126/02-03. He did not ensure that the KY Credit Voucher (DT-2) was signed by any Officer of the Branch before making the KY. The related DT-2 was not signed by any officer. The balance in the SB A/C. 6051/7 of R. Bibi as on 28.02.2003 was Rs. 277.70 P which was not sufficient for making the KY No. 126/02-03 for Rs. 20,000/- 3. Sri S Namasudra closed LBY Deposit A/C. No. 79 of Dipen Boro on 19.06.2003 without adjusting the loan against it which had a balance of Rs. 8890/- outstanding on the day. The loan A/C is still outstanding with balance of Rs. 10733/- as of 31.03.2005. He has thus displayed indifference towards Bank's interest causing wrongful loss to the Bank. 3. The petitioner totally denied the allegations made against him. The petitioner had filed an appeal before the Departmental Appellate Authority. When the appeal was pending, this writ petition was filed. The appeal came to be dismissed on 03.02.2009. 4. The counsel for the petitioner submits that according to the UCO Bank Officer Employees' (Discipline & Appeal) Regulations 1976, the Assistant General Manager, incharge of the Zone is the competent authority to be a disciplinary authority to initiate an enquiry and to pass appropriate orders. In the petitioner's case, the Deputy General Manager has initiated the disciplinary proceeding against the petitioner which is illegal and contradictory to the Regulations. 5. It is submitted that Sri K.C. Das although he was the former employee of the Bank is eligible to be an enquiry officer but was not an empanelled enquiry officer according to the list of empanelled officers issued by the Bank. Therefore, conducting of the enquiry by Sri J.C. Das is improper. I find the technical contention submitted by the counsel for the petitioner does not appear to be proper. 6. In this case, as per the respondent's version Deputy General Manager was the Zonal Officer and was a competent disciplinary authority. Even otherwise the disciplinary authority should not be lesser in rank than the appointing authority. I find the technical contention submitted by the counsel for the petitioner does not appear to be proper. 6. In this case, as per the respondent's version Deputy General Manager was the Zonal Officer and was a competent disciplinary authority. Even otherwise the disciplinary authority should not be lesser in rank than the appointing authority. The appointing authority being the Assistant General Manager, the Deputy General Manager is senior to him and his functioning as disciplinary authority cannot be termed as illegal. The appointment of Sri J.C. Das as an enquiry officer also does not appear to be illegal because he was the former employee of the Bank and is eligible to be appointed as enquiry officer. Merely because his name is not shown in the list of empanelled officer of the Bank it cannot be said that he is not eligible to be an enquiry officer on merits. 7. It is now to be seen that the charge No. 1 discloses that the petitioner had made fraudulent transactions with regard to several SB Accounts. The statement of allegation mentions that the Accounts of Sri P.B. Deka, Sri R.R. Boro, Sri N.B. Boro are the one in respect of which the petitioner is said to have permitted illegal withdrawal and over withdrawal of money. 8. The second allegation is that in respect of account of one Sri N.C. Brahma as on 25.07.2002 the balance was wrongly drawn as Rs. 82,297/- instead of Rs. 72,297/-. Later on the corrections have been made in the account to show over-drawal of Rs. 7026 as on 11.01.2005. 9. The third allegation is that the petitioner prepared a voucher for Rs. 20,000/- in respect of Sri C.M. Das on 13.05.2003 without any authority letter from the customer and prepared the Contra Credit KY voucher for preparation of KY No. 24/03-04 of Rs. 20,000/- in the name of Sri C.M. Das. The KY ledger entry was also made by Sri S Namasudra and authenticated by him. But in a most fraudulent and irregular manner and with malafide intention he had not debited SB 741/1 of Sri C.M. Das for Rs. 20,000/- on 13.05.2003 for making the relative KY No. 24/03-04. He did not ensure that the KY Credit Voucher (DT-2) was signed by any officer of the branch before making the KY. The related DT-2 was also not signed by any officer. 10. 20,000/- on 13.05.2003 for making the relative KY No. 24/03-04. He did not ensure that the KY Credit Voucher (DT-2) was signed by any officer of the branch before making the KY. The related DT-2 was also not signed by any officer. 10. The another allegation that the petitioner had prepared a debit voucher of Rs. 20,000/- in SB 6051/7 of R. Bibi on 28.02.2003 without any authority letter from the customer R. Bibi and also prepared the contra credit KY voucher for preparation of KY No. 126/02-03 of Rs. 20,000/- in the name of Sri R. Bibi. The KY ledger entry was also made by Sri S. Namasudra and authenticated by him. But in a most fraudulent and irregular manner with malafide intention he has not debited SB 6051/7 of R. Bibi for Rs. 20,000/- on 28.02.2003 for making the relative KY No. 126/02-03. He did not ensure that the KY Credit Voucher (DT-2) was signed by any Officer of the Branch before making the KY. The related DT-2 was not signed by any officer. The balance in the SB A/C. 6051/7 of R. Bibi as on 28.02.2003 was Rs. 277.70 P which was not sufficient for making the KY No. 126/02-03 for Rs. 20,000/-. 11. The other allegation that the closed LBY Deposit A/C. No. 79 of Dipen Boro on 19.06.2003 without adjusting the loan against it which had a balance of Rs. 8890/- outstanding on the day. The loan A/C is still outstanding with balance of Rs. 10733/- as of 31.03.2005. He has thus displayed indifference towards Bank's interest causing wrongful loss to the Bank. 12. The petitioner in his defence statement has stated that the KY ledger entry was not made by the petitioner but it was made by one Sri M.K. Basumatary, the clerk of the Bank and he was also charge-sheeted and awarded major penalty of compulsory retirement for making false entries. With regard to the statement of allegations at 1(a), 1(b), 1(c), 2(a), 2(b) and 3 and article of charges, the following explanations are given by the petitioner in his defence statement "Explanation to allegation at 1(a): In case of above 8 eight entries, nothing is mentioned in the charge sheet, whether such amounts were subsequently withdrawn and there was any loss to the Bank due to such entries. It may also be noted that clerk or any other official makes ledger entry from voucher and the entry is authenticated by an officer or a supervisory staff. In these cases, ledger entry is not made by Mr. S. Namasudra but by some other staff member and the entry is only authenticated by Mr. S. Namasudra. Thus it can be safely inferred that credit entries were made showing the voucher and after authentication by Mr. S. Namasudra, the vouchers have been destroyed by the miscreant, otherwise, the voucher should have been in the branch. It may also be noted that Mr. M.K. Basumatary, clerk of the branch was charge sheeted and was awarded major penalty for making fictitious entries in the ledger (See DEX-15 & DEX-18). Thus it is clear that Mr. S. Namasudra has been made 'scapegoat' and the same was brought to the notice after 3 to 4 years when he left the branch. Thus the allegation that Mr. S. Namasudra most irregularly and fraudulently committed breach of faith in the performance of his duties-is not proved. Explanation to allegation at 1(b): In case of two account viz., 6188/PEN & 6665/PEN, overdrawn amounts have been adjusted (DEX 8 & DEX-9). As the accounts were adjusted, it is clear that this is not a case of fraud, but it is a mere case of transactional mistake which often happens in day to day transaction in the Bank and when transactional mistake are detected, the bank carries out the rectification work and if the account is overdrawn, the account holder is asked to repay the overdrawn amount. In another two transactions in the SB A/C. No. 7280 as mentioned above, the same transactional mistake occurred and in the charge sheet or in the management's presentation no mention has been made whether the account holder has been asked to repay the amount but the allegation was brought against Mr. S. Namasudra after he left the Branch. The Banking procedure tell that the present incumbent should initiate for recovery of such amount but without doing the same, Mr. S. Namasudra has been alleged to defraud the Bank. Thus the allegation is not proved. Explanation to allegation at 1(c): In this case, the transactional mistake was detected after two and half years when Mr. S. Namasudra left the Branch. S. Namasudra has been alleged to defraud the Bank. Thus the allegation is not proved. Explanation to allegation at 1(c): In this case, the transactional mistake was detected after two and half years when Mr. S. Namasudra left the Branch. It may be noted that, in the branch the balancing was in arrear and there was acute shortage of staff (DEX-5, DEX-6). Here also, it is not mentioned in the charge sheet whether the account holder has been asked to pay the amount and the presenting officer was also silent in the matter. As the mistake was detected on 11.01.2005, when Mr. S. Namasudra left the branch, he was not in a position to recover the amount from the account holder. Thus the allegation that Mr. Namasudra was negligent in performing his duties thus leading to financial loss to the Bank is not proved. Explanation to allegation at 2(a): In this case, it is reiterated that there was acute shortage of staff in the branch (DEX-5) and this is the reason why Mr. S. Namasudra had to perform duties at different department to ensure proper customer service which he also deliberated before you and recorded in the enquiry proceedings. The overdrawn amount has been adjusted on 18.05.2006 (DEX-10). Thus there were simple transactional mistakes and the bank suffered no loss and hence the allegations have no substantial impact and must not be taken into account for obvious reason. Explanation to allegation at 2(b): In this case also, it is reiterated that there was acute shortage of staff in the branch (DEX-5) and this is the reason why Mr. S. Namasudra had to perform duties at different department to ensure proper customer service which he also deliberated before you and recorded in the inquiry proceedings. The overdrawn amount has been adjusted on 01.02.2005 (DEX-10). Thus, there were simple transactional mistakes and the bank suffered no loss and hence the allegations have no substantial impact and must not be taken into account for obvious reason. Explanation to allegation at 3: In this case, it may be mentioned that the loan A/C was closed on 25.11.2006 (DEX-7). Thus the allegation that Mr. S. Namasudra displayed indifference towards bank's interest causing wrongful loss to the Bank is not proved. Explanation to allegation at 3: In this case, it may be mentioned that the loan A/C was closed on 25.11.2006 (DEX-7). Thus the allegation that Mr. S. Namasudra displayed indifference towards bank's interest causing wrongful loss to the Bank is not proved. Explanation to article of charge 1: In this matter, it is not proved from any of the evidences presented by the presenting officer that fraud has taken place in the Tamulpur Branch and in regard to malafide intention, no evidence has been presented by the presenting officer. The Bank has also suffered no loss as it has been found that almost all the overdrawn amounts have been adjusted. Also, no evidence has been provided by the presenting officer that any account holder refused to pay the overdrawn amount. Thus Mr. S. Namasudra had no way failed to discharge his duties with utmost integrity and honesty and hence he has not violated Regulation-3 of UCO Bank Officer Employees' (Conduct) Regulation 1976 as amended. Explanation to article of charge 2: It is stated that the evidence as presented from DR's side proved that the overdrawn amount in SB A/C has been adjusted by the account holder subsequently. Thus, it is clear that the issued FDR/KY's were not fictitious and hence Mr. S. Namasudra had not abused his official position irregularly and fraudulently as has been charged and therefore Mr. S. Namasudra not violated Regulation-3 of UCO Bank Officer Employees' (Conduct) Regulation 1976 as amended. Explanation to article of charge 3: It has been proved that the loan A/C has been adjusted. Thus Mr. S. Namasudra had not failed to ensure and protect the interest of the Bank and hence Mr. S. Namasudra not violated Regulation-3 of UCO Bank Officer Employees' (Conduct) Regulations 1976 as amended." The following are findings of the Disciplinary Authority: "Allegation No. 1(a): It has been proved in the Enquiry that on several different dates from 26.04.2002 to 08.01.2004 eight (8) fictitious credit entries totaling Rs. 1.75 lacs were made in the Savings Bank account No. 7280 of Rabi Ram Boro, without any corresponding entries in the Cash Scroll or Cash receipt Book, which were initiated by Shri S. Namasudra. The said amounts were subsequently withdrawn from the account causing loss to the Bank. 1.75 lacs were made in the Savings Bank account No. 7280 of Rabi Ram Boro, without any corresponding entries in the Cash Scroll or Cash receipt Book, which were initiated by Shri S. Namasudra. The said amounts were subsequently withdrawn from the account causing loss to the Bank. The Defence Representative only stated that those were unintentional mistakes which is not tenable because on seven different dates mistakes cannot be happened on the same account. These entries were obviously done to give undue benefit to the depositor. Allegation No. 1(b): It has been well established in the Enquiry that withdrawal slips were passed for payment by Shri S. Namasudra without debiting the respective account. More so, during the relevant point of time, the respective S/B accounts did not have sufficient balance for passing of the withdrawal slips. Moreover, it is observed that two withdrawal slips for Rs. 40,000/- and Rs. 30,000/- were passed in the S/B Account Number 7280 of Shri RR Boro in whose account fictitious credit entries {as stated in Allegation No. 1(a) above} were authenticated by Shri S. Namasudra. This shows that the withdrawal slips were deliberately passed even when there was no sufficient balance in the accounts to show undue favour to the respective depositors Allegation No. 1(c): It has been proved in the Enquiry that Shri S. Namasudra had authenticated the balance of Rs. 82,297/- in the S/B Account Number 5546/6 of Shri N.C. Brahma, instead of the correct balance of Rs. 72,297/-. The Defence Representative tried to prove that due to acute shortage of staff on that day, the mistake occurred. But the documentary evidence (DEX-5 and DEX-6) do not corroborate the same. In view of the above, concurring with the Enquiry Officer, I hold that the Allegation No. 1(a), 1(b), 1(c) and corresponding Charge No. 1 are proved. Allegation Nos. 2(a) & 2(b): FDRs (KYs) for Rs. 20,000/- each were issued by Shri S. Namasudra in his own handwriting without debiting the respective SB Accounts. Moreover, on the relevant dates, there was no sufficient balance in the accounts, which signifies that the said FDRs were issued fraudulently. Moreover, there was no authority letters to debit the respective SB accounts for issuing the FDRs {Allegation No. 2(a)} was credited to SB Account on its maturity. Thus, the depositor was given undue benefit of Rs. 24,090/-. Moreover, on the relevant dates, there was no sufficient balance in the accounts, which signifies that the said FDRs were issued fraudulently. Moreover, there was no authority letters to debit the respective SB accounts for issuing the FDRs {Allegation No. 2(a)} was credited to SB Account on its maturity. Thus, the depositor was given undue benefit of Rs. 24,090/-. Therefore, concurring with the Enquiry Officer, I hold the Allegation No. 2(a) and Allegation No. 2(b) and corresponding Charge No. 2 are proved. Allegation No. 3: It has been proved that Shri S. Namasudra closed the LBY Account No. 79 without adjusting the loan sanctioned against it ignoring the "Lien mark". However, the said loan account was adjusted subsequently. Therefore, I agree with the Enquiry Officer the Allegation No. 3 and its corresponding Charge No. 3 is partly proved. I have considered the entire matter independently with an unbiased mind and find that the Charges proved in the Enquiry are very serious and grave. I also feel that the above fraudulent acts on the part of Shri S. Namasudra were not expected from a Senior Officer, like him. It appears that he had given undue benefits to the depositors at the cost of the Bank. Accordingly, I being the Disciplinary Authority, in exercise of the powers conferred upon me by the Competent Authority of the Bank, hereby impose the following penalties with immediate effect on Shri S. Namasudra, in terms of Regulation-4(j) of UCO Bank Officer Employees' (Discipline & Appeal) Regulation 1976, as amended, which I feel will meet the ends of justice. Charge Number Findings Penalties 1. PROVED Dismissal from Service which shall ordinarily be a disqualification for future employment. 2 PROVED Dismissal from Service which shall ordinarily be a disqualification for future employment. 3 PARTLY ALLOWED Dismissal from Service which shall ordinarily be a disqualification for future employment. The above penalties will run concurrently." 13. The sum and substance of the defence disclose that the mistake in posting the entries in the relevant Register is due to lack of staff and pressure of over working. The petitioner states that the accounts in which the amounts were over drawn have been regularized by the customers and that no financial loss is caused to the Bank. The sum and substance of the defence disclose that the mistake in posting the entries in the relevant Register is due to lack of staff and pressure of over working. The petitioner states that the accounts in which the amounts were over drawn have been regularized by the customers and that no financial loss is caused to the Bank. The petitioner submits that the clerical staffs who are responsible for making the entries have committed the mistake and he was misguided by such mistake in discharge of his duties. It is argued that there is no allegation that the petitioner had any dishonest dealing with the customers whose accounts are over drawn. It is submitted that the branch of the bank, in question, is located in a disturbed area, where terrorist activities are highly vibrant. The staffs had to work in constant fear and pressure. Under such circumstances, it is said that the mistakes that have happened are purely unintentional one. Therefore, submits that the order of dismissal is bad in law and is liable to be set aside. 14. The counsel for the respondents relied upon the decision of the Supreme Court in Damoh Parma Sagar Rural Regional Bank & Another vs. Munna Lal Jain, (2005) 10 SCC 84 . In the cited case the delinquent employee had withdrawn the amount from the customers' account without authority and given the explanation that his wife was seriously ill and for her medical expenses the amount was withdrawn. The Court found that there was admission of the guilt and the punishment imposed was held to be proper. 15. The counsel for the respondents further relied upon the decision of the Supreme Court in General Manager, Punjab & Sind Bank & Others vs. Daya Singh, 2010 Legal Eagle (SC) 521. In this case, there was also allegation of un-explained withdrawal of amount by the Manager in the name of fictitious persons and his dismissal order was held to be correct. The petitioner is, however, guilty in permitting fictitious entries to be made in the Registers regarding credit pertaining to the customers, in question, and also permitting over-drawal without there being requisite balance in the accounts and that surely would be a misconduct which should attract penalty. One extenuating factor in favour of the petitioner is that the over drawn amounts have been regularized. One extenuating factor in favour of the petitioner is that the over drawn amounts have been regularized. The customers have paid the said amount may be with delay but with interest as per the terms. The petitioner has put in 23 years of service. The conduct of the petitioner has not resulted to any financial loss to the Bank. Therefore, imposition of dismissal from service of the petitioner appears to be too harsh. Hence, the punishment is reduced to compulsory retirement with all monetary and pensionary benefits available in the Service Rules. Accordingly, the petition is partly allowed. Petition Partly allowed.