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2014 DIGILAW 832 (JHR)

Sheo Nandan Prasad v. UCO Bank

2014-08-06

AMITAV K.GUPTA, R.BANUMATHI

body2014
JUDGMENT Amitav K. Gupta, J: The present Letters Patent Appeal is directed against the order dated 03.08.2006 passed in C.W.J.C NO.3989/1999(R) whereby the writ petition of the appellant was dismissed by the learned Single Judge. 2. The appellant/writ petitioner has averred, in the aforesaid writ petition, that he was appointed on the post of Assistant Cashier-cum-Godown Keeper on 11.12.1980 and he was posted in Gumla Branch of UCO Bank; that in the month of June 1981 he was transferred to B.I.T. Mesra Branch of the said Bank and he was promoted to the post of Head Cashier in the year 1982 and was transferred to Nandlalpur Branch in the district of Bhagalpur; that in the year 1986 he was promoted to the post of Chief Cashier and in the year 1987 he was redesignated to the post of Assistant Manager (Cash), thereafter, he was posted at Bermo Branch. Thereafter in the month of October 1994 he was transferred to B.I.T. Mesra Branch where he joined as Assistant Manager (Cash); that by office order dated 14.09.1995 issued by Zonal Manager he was placed under suspension under the UCO Bank Officers Employees (Discipline and Appeal) Regulation, 1976 on the allegation of fraud, and misappropriation of the fund of Bank during his tenure as Assistant Manager (Cash) in Bermo Branch. Being aggrieved by the order of suspension the appellant preferred writ petition being C.W.J.C. No. 2983/1996(R) and the said case was disposed of by order dated 18.02.1997 on the ground that order of suspension had been revoked during the pendency of the writ petition with an observation that the appellant would be entitled to get all the benefits. It is stated that Memo No. BJO/VIG./MISC/109/96/26(R) dated 09.09.1996, the Zonal Manager issued a charge-sheet containing the charges of allegation that the appellant had received various amounts aggregating Rs. 28,085/-from locker hirers on different dates but he did not make the entry of the said amount in the Books of Accounts of the Bank and he allegedly mis-appropriated the aforesaid amount thereby causing wrongful loss to the Bank. It was also alleged that in complete violation of the Bank's rules and procedures he has issued acknowledgments ofreceipts of cash in an irregular manner to the locker hirers and made correspondingentries in the locker rent receipts register for the amount retained by him. It was also alleged that in complete violation of the Bank's rules and procedures he has issued acknowledgments ofreceipts of cash in an irregular manner to the locker hirers and made correspondingentries in the locker rent receipts register for the amount retained by him. On receiving the charge-sheet the appellant/writ petitioner by letters dated 29.10.1996 and 10.12.1996 requested the Zonal Manager, Patna to provide him the copies of the document but the authorities did not entertain his request and copies of the documents were not supplied to him. Thereafter departmental enquiry was conducted and the report of the enquiry was submitted on 13.07.1998 and by letter under Memo No. BZO/VIG./Misc/98-99/175 dated 05.11.1998 the Deputy General Manager posing himself as the Disciplinary Authority served a copy of punishment order on the appellant dated 05.11.1998 which was received by the appellant on 12.11.1998 whereby the punishment of compulsory retirement from service along with the order of recovery of Rs. 28,085/-was passed against the appellant. On receipt of the said punishment order the appellant preferred an appeal before the General Manager (Operation-II) of the Bank on 24.11.1998 and the same was dismissed on 16.09.1999. Thus, being aggrieved the appellant had filed aforesaid writ petition the order of which has been impugned herein. 3. Learned counsel for the appellant while assailing the impugned order, has contended that the learned Single Judge failed to appreciate and consider the question namely, whether the service of enquiry report is mandatory and whether the appellate authority, while deciding the appeal, requires to consider the grounds taken by the appellant in the Memo of Appeal and pass reasoned order on the said grounds. It has been submitted that the appellant had demanded the copies of rent receipt register, receipt issued by the appellant, locker register of the locker hirers as well as enquiry report but the same were not provided to him. It has been argued that the persons who had made complaint against the appellant have not been examined in the enquiry proceedings resultantly the appellant has been deprived of the opportunity of cross-examination so as to disprove the allegation that they had given the money to the appellant. It has been argued that the persons who had made complaint against the appellant have not been examined in the enquiry proceedings resultantly the appellant has been deprived of the opportunity of cross-examination so as to disprove the allegation that they had given the money to the appellant. In support of the contention learned counsel has relied on the decision in the case of State of Uttar Pradesh Versus Saroj Kumar Sinha, reported in (2010)2 SCC 772 and referred to para 28 of the said judgment and submitted that since no witnesses were examined and documents have not been proved, then the same could not be taken into consideration to conclude that the charges have been proved against the respondents. He has also placed reliance on paras 29 and 30 of the aforesaid judgment and submitted that it has been held by the Supreme Court that departmental enquiry has to be conducted in accordance with rules of natural justice which provides for giving a reasonable opportunity to the employee to be heard and the object of the rule of natural justice is to ensure that a government servant is treated fairly in a proceeding which culminates in imposition of punishment including dismissal/removal from service. Learned counsel has further submitted that in the said case the Hon'ble Supreme Court held that the charge-sheeted employee had been denied reasonable opportunity to defend himself in the inquiry, accordingly, it set aside the punishment order. It is urged that the case of the appellant is squarely covered by the facts of the aforesaid judgment. 4. Learned counsel for the appellant has further submitted that the charges were with respect to the period 1992-94 and the management has not produced any witness to support the charge and the entire allegation is a concocted story and serious prejudice has been caused to the appellant by not furnishing the enquiry report .That had the document being supplied, the appellant would have had ample opportunity to give an effective reply regarding alleged irregularities to the Disciplinary Authority. It is further argued that even the appellate authority, while deciding the appeal, has not considered the grounds taken by the appellant in his memo of appeal and at least the appellate authority should have considered that the documents sought for by the appellant were not supplied to him or should have stated that the documents were not relevant but the same was not done by the appellate authority and the appeal has been dismissed in a mechanical manner. To buttress his argument he has relied on a decision in the case of Vijay Singh Versus State of U.P., reported in (2012)3 JCR 89 (SC) and referred to para 13 of the said judgment stating that in the said case the Apex Court held that the statutory authority is under the legal obligation to decide the appeal and revision dealing with the grounds taken in the appeal/revision etc., otherwise it would be a case of non application of mind. He has also referred on a decision in the case of Union of India Versus Md. Ramzan Khan, reported in AIR 1991 SC 471 and submitted that the Apex Court in the said case held that even after deletion of the second opportunity as provided under Article 311(2) of the Constitution it has been held that supply of the copy of enquiry report is mandatory as the applicability of rules of natural justice is not affected by deletion of second inquiry under Article 311 by 42nd Amendment. On the above grounds it has been contended that the impugned punishment order passed by the Disciplinary Authority and affirmed by the Appellate Authority is not sustainable in law or on facts and the learned Single Judge has failed to appreciate these facts while dismissing the writ petition of the appellant. 5. Learned counsel for the respondent-Bank when queried by this Court as to what are the statutory rules? Learned counsel for the Bank has referred to para 7 onwards of the counter affidavit filed in the writ petition. Para 7 of the counter affidavit enumerates the rules which read as under:- “7. 5. Learned counsel for the respondent-Bank when queried by this Court as to what are the statutory rules? Learned counsel for the Bank has referred to para 7 onwards of the counter affidavit filed in the writ petition. Para 7 of the counter affidavit enumerates the rules which read as under:- “7. That UCO Bank Officers Employees, (Conduct) Regulation, 1976 under Regulation 3 provided as follows:- 3(1) Every Officer employee shall at all time take all possible steps to ensure and protect the interest of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a Bank Officer. (2) Every Officer employee shall maintain good conduct and discipline and show courtesy and attention to all persons in all transactions and negotiations. (3) No officer shall in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. (4) Every officer employee shall take all possible steps to ensure the integrity and devotion to duty of all persons for the time being under his control and authority.” 6. Citing the aforesaid statutory regulation, learned counsel for the respondent-Bank referred to para 8 of the counter affidavit and submitted that in pursuance of the aforesaid conduct, charge was framed against the appellant on 09.09.1996. He was given liberty to admit the said charge or specifically deny each of the charge or allegation. The charges and allegation which are not specifically denied would be deemed to have been admitted and he was directed to submit written statement of defence within ten days of the receipt thereof. The appellant received the copy of the charge on 01.10.1996. Charges were framed against the appellant which are as follows:- Firstly, that he received various amount aggregating Rs. 28,085/-from 45 locker hirers on different dates for depositing amount towards locker rent but he did not account for the sum in the bank's account book and by not depositing the money into the bank in violation of Bank's rules and procedures unauthorizedly, most irregularly and fraudulently retained the amount aggregating Rs. 28,085/-with him with an intent to cause wrongful gain to himself and wrongful loss to the bank. 28,085/-with him with an intent to cause wrongful gain to himself and wrongful loss to the bank. Secondly, the charge-sheeted officer in complete violation of Bank's rules and procedures in a most irregular manner issued acknowledgment receipt of cash to the locker hirer (as per list contained in Annexure-1) and made corresponding fake entries in locker rent receipt register and the amount was fraudulently retained by him. 7. It is further submitted that charges and allegations against the appellant are so grave and serious that it warrants severe punishment against such employee; that under the Conduct and Regulation of the employees, an employee has to maintain and ensure and protect the interest of the Bank and discharge the duties with utmost integrity, honesty, diligence and do nothing which is unbecoming of an bank officer. Regulation 24 stipulates that breach of any of the provision of the said regulation shall be deemed to constitute mis-conduct punishable under Bank Officers Employees (Discipline and Appeal) Regulation 1976. Once it is held that the competent authority is of the opinion that the delinquent employees' act of omission and commission constitutes mis-conduct which is detriment to the interest of the bank. That in exercise of power conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, the Board of Directors of UCO bank in consultation with Reserve Bank and with previous sanction of Central Government hereby made “UCO Bank's Officer Employees' (Discipline and Appeal) Regulations 1976. Regulation 4 of the aforesaid regulation provides for penalties which may be imposed on the Officer/employee on an act of mis-conduct or for any other good and sufficient reasons. The penalties are classified as minor and major penalties. Clause (h) of the Regulation 4 provides for compulsory retirement and Regulation 6 provides for procedures for imposing major penalties and detail procedure is provided in the Regulation wherein it is stated that after framing of the charge by the competent authority the disciplinary authority shall proceed in the matter of enquiry against the delinquent employee with respect to imputation of charge. 8. 8. Learned counsel for the respondent-Bank also referred to paras 21 to 26 of the counter affidavit and submitted that in conformity with the procedures to be followed in a departmental proceedings; that the appellant was advised to obtain consent letter from Sri P.B. Lal for his participation in the enquiry in the capacity of defence representative; that the appellant requested to adjourn the proceedings on the grounds that he had to obtain letter from defence counsel, to prepare a list of evidence and witnesses and that he was a candidate for C.A.II B exam-part II. It is submitted that presenting officer on behalf of bank produced the documents which were marked Exts. ME 1 and ME 2 which contained the details of bank's record whereby money was received by the charge-sheeted officer and the amount was not accounted for in the books of accounts of the bank and the appellant had participated in the said proceedings and he had signed on it and on the request of the appellant the proceeding was adjourned to 27.08.1998. On the said date document was produced by the bank and relevancy was discussed; that the Presiding Officer has read out the list (Annexure-1 of ME 2) containing details of bank's record and money received by the charge-sheeted officer. On the said date document was produced by the bank and relevancy was discussed; that the Presiding Officer has read out the list (Annexure-1 of ME 2) containing details of bank's record and money received by the charge-sheeted officer. That the appellant participated in the proceedings and again it was adjourned to 28.08.1998; that on 28.08.1998 it was recorded that the charge-sheeted officer received the original certificate and vouchers and question of relevancy of other documents was discussed; that the original document had been retained by the police in connection with the criminal case, therefore, extract copies of relevant document supplied by the bank were produced and hearing was postponed to 30.08.1998; that on 28.08.1998 the appellant had signed on the proceedings file and on that date the proceeding could not be held and it was adjourned to 31.08.1998; that on 31.08.1998 one Sri N.P. Tripathy appeared as defence representative and participated in the proceedings along with charge-sheeted officer i.e. appellant; that relevant discussion were noted in the proceeding on 31.08.1998 wherein it is stated that charge-sheeted officer has accepted for the appearance of Sri S.B. Roy, A.C.O Personnel, R.M.S. Office, Ranchi who was erstwhile Manager of Bermo Branch who appeared as defence witness and proved the relevant register, voucher and relevant document and on that date the proceeding was concluded; that both the sides i.e Presiding Officer and C.S.O were advised for oral submission instead of written submission on the date fixed i.e. on 01.09.1998 at 10:30 am. On 01.09.1998 the proceeding was recorded by the enquiry officer in which the charge-sheeted officer i.e. appellant and Sri N.P. Tripathy, the defence representative appeared and submitted and signed on his behalf; that after oral submission considering the relevant document and providing the appellant all opportunity to place and defend his case, the matter was heard by the enquiry officer and proceeding was concluded on 01.09.1998. 9. Learned counsel for the respondent-Bank has further submitted that the appellant cannot take the plea that he was not provided with reasonable opportunity or not supplied with the documents. In support of his arguments he has relied on the judgment in the case of Union Bank of India Versus Vishwa Mohan, reported in (1998)4 SCC 310 . 10. 9. Learned counsel for the respondent-Bank has further submitted that the appellant cannot take the plea that he was not provided with reasonable opportunity or not supplied with the documents. In support of his arguments he has relied on the judgment in the case of Union Bank of India Versus Vishwa Mohan, reported in (1998)4 SCC 310 . 10. Learned counsel for the respondent has submitted that the copy of the enquiry report was furnished to the appellant and the enquiry report was submitted to the disciplinary authority on 13.10.1998 who concurred with the finding of the enquiry officer: that since the allegation was of defalcation and misappropriation of bank's money and cheating of public which is serious mis-conduct and loss of bank's confidence and goodwill amongst the people, accordingly, the major penalty for removal from service was required, however a lenient view was taken and the appellant was compulsorily retired and terminal benefits were given and disciplinary authority in terms of Regulation 7 (3) imposed punishment of compulsory retirement and recovery of Rs. 28,085/-from his terminal benefits which is permissible under Clause (3) of the Regulation. It has been further submitted that the regulation does not provide for giving second show cause and the provision of second show cause has been done away by Article 311(2) of the Constitution by 42nd Amendment. Moreover regulation 17(2) stipulates that when an appellate authority wants to enhance the punishment then in that circumstance he will have to issue second show cause but when he concurs with the finding of the disciplinary authority there is no question of giving second show cause. 11. Learned counsel has further contended that in the case of Divisional Controller, KSRTC (NWKRTC) Versus A.T. Mane, reported in (2005)3 SCC 254 the Apex Court in para 12 has held as under:- “12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal. '' 12. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal. '' 12. Learned counsel for the respondent-Bank has further argued that in the factual scenario the disciplinary authority had taken lenient view awarding punishment of compulsory retirement and recovery of a sum of Rs. 28,085/-and there is no violation of principle of natural justice. learned counsel has also referred to the decision reported in the case of Managing Director, ECIL, Hyderabad and Others Versus B. Karunakar and others, reported in (1993)4 SCC 727 and submitted that Constitution Bench in the aforesaid case held that the supply of enquiry report is not required when no prejudiced is caused to the delinquent or the charge-sheeted officer, accordingly argued that in view of the aforesaid decision the decision relied on by the appellant in the case of Md. Ramzan Khan (Supra) is not applicable in this case. 13. Learned counsel for the appellant has, in reply, submitted that in the case of Managing Director, ECIL (Supra), cited by the counsel for the respondent, it has been held that before final order is passed by the disciplinary authority the enquiry report should be furnished and in the present case the enquiry report was not furnished and even if it is not provided in the rule and regulation of the bank the enquiry report has to be furnished as the enquiry officer is not the appointing authority. It has been further submitted that Rule says that before final order of punishment is passed by the disciplinary authority the enquiry report has to be furnished and it is after that that the stage of appeal and revision lies and in the instant case consistent plea of the appellant is that the enquiry report was not furnished and this has prejudiced the appellant and the act of the respondent-Bank is in violation of principle of natural justice. 14. On perusal of the decision in the case of Vijay Singh (Supra) relied on by the learned counsel for the appellant it is evident that in the said case the question involved was whether the disciplinary authority can impose punishment not prescribed under statutory rules after holding disciplinary proceedings. 14. On perusal of the decision in the case of Vijay Singh (Supra) relied on by the learned counsel for the appellant it is evident that in the said case the question involved was whether the disciplinary authority can impose punishment not prescribed under statutory rules after holding disciplinary proceedings. In the said case the appellant was governed by U.P. Police Officers of the Subordinate Ranks(Punishment and Appeal) Rules 1991and Rule 4 of the said rules does not provide for withholding the integrity certificate as a punishment for delinquency and the order passed by the disciplinary authority withholding the integrity certificate as a punishment which not being provided under Rules 1991 could not be termed as punishment. It was held that imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules, therefore, for performing the quasi judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. On the said ground, the appeal was filed before the Appellate Authority and the Appellate Authority brushed aside the submission of the appellant stating that the order of punishment imposed by the disciplinary authority did not require any interference whereafter the revisional authority rejected the revision observing that “withholding of integrity certificate does not come under punishment under 1991 Rules, hence it was not maintainable”. The Supreme Court held that a person should not be made to suffer penalty except for a clear breach of existing law and the Appellate and the Revisional Authority should have rectified the mistake committed by the disciplinary authority. If the Revisional Authority held that against the order passed by the Disciplinary Authority the revision was not maintainable then not rectifying the mistake amounted to a total non-application of mind by the Revisional Authority. 15. Thus, the fact situation of the aforesaid case is not applicable in the instant case because Regulation-4 of UCO Bank Regulation 1976, prescribes the minor and major punishment and the punishment of compulsory retirement is stipulated under Regulation 4, accordingly, the Disciplinary Authority had recommended the punishment by taking a lenient view of not dismissing the appellant from service rather recommending the punishment of compulsory retirement with payment of the benefits and the recovery of misappropriated amount of Rs.28,085/-from the terminal benefits of the appellant. The Appellate Authority in the instant case perused the enquiry report and since he was in agreement with the findings, he confirmed the order in terms of Regulation 17(ii) of the UCO Bank Officer Employees (Discipline and Appeal) Regulations 1976. 16. It is not disputed by the appellants that he had participated in the enquiry proceeding which commenced on 28.01.1998. He appeared on the said date and denied the charges and he also informed that he had not submitted reply on the charge-sheet and he was advised to obtain consent letter from P.B. Lal as defence representative. The appellant had prayed for expeditious conclusion of the proceeding and he has not challenged the procedure followed in the departmental proceeding. In his presence, the Presiding Officer had produced the documents ME-1 and ME-2 which contained the details of the money which he received and the amount which was not accounted for in the book of accounts of the bank. He had participated in the proceedings and he had signed and the Presiding Officer had read out the list, ME-2 containing Annexure-1. It is not denied that in the proceeding the documents produced on behalf of the bank were marked and their relevancy was discussed and the Presiding Officer had read out the list, Annexure-1 of ME-2 covering details of the bank records regarding the money received by the appellant which was not accounted for in the books of the bank. On the request of the appellant the proceeding was adjourned to 27th August 1998. That on the next day, i.e. on 28.8.1998, it was recorded that the appellant received the original certificates and vouchers and on that date, the appellant had signed on the file of the proceeding. On the next date of proceeding i.e. 31st August 1998, the appellant along with his defence representative Mr. N.P. Tripathi had appeared and the appellant and the defence representative had produced Sri S.B. Roy, erstwhile Manager of Bermo Branch, as defence witness and the documents were proved by him. Thereafter, the appellant appeared with his defence representative and oral submissions were made on 01.09.1998 and the defence representative had signed on behalf of the appellant. 17. The photo copy of the enquiry report has been filed by the bank and it contains the signature of the appellant on the dates, as mentioned above. 18. Thereafter, the appellant appeared with his defence representative and oral submissions were made on 01.09.1998 and the defence representative had signed on behalf of the appellant. 17. The photo copy of the enquiry report has been filed by the bank and it contains the signature of the appellant on the dates, as mentioned above. 18. It is admitted fact that the appellant had participated in the proceedings. He was also assisted by the defence representative. He also examined the defence witness and the relevancy of the documents were discussed in his presence. It is apparent that the appellant was given fair and reasonable opportunity thus, the decision in the case of Saroj Kumar Sinha (Supra) relied on by the appellant is not applicable in the instant case. 19. The decision in the case of Md. Ramzan Khan (Supra) as relied on by the appellant, has been discussed in the case of B. Karunakar and it has been held in Para-31 of the said judgment, while considering the issue of non-supply of the enquiry report to the delinquent and the effect of the order of punishment, that the question is whether in fact prejudice has been caused to the employee or not on account of denial of enquiry report and this aspect has to be considered on the basis of relevant material facts and circumstances of each case. The Hon'ble Supreme Court has held that the Court/Tribunal should not mechanically set aside the order of punishment on the ground that the enquiry report was not furnished. 20. The above discussion points out to the fact that a thumb rule can not be applied to every case for setting aside a punishment merely because the enquiry report or document has not been furnished rather it has to be seen whether any prejudice was caused to the delinquent in the surrounding facts of each case. As noticed, in the present case, the appellant had participated in the proceeding along with his defence representative. The relevancy of documents was discussed in his presence and defence witnesses were also examined which establishes the fact that the principles of natural justice were followed and reasonable opportunity was given to the appellant. 21. In the case of Vishwa Mohan (Supra) cited by the counsel for the respondent it has been held in para 12, as under:- “12. The relevancy of documents was discussed in his presence and defence witnesses were also examined which establishes the fact that the principles of natural justice were followed and reasonable opportunity was given to the appellant. 21. In the case of Vishwa Mohan (Supra) cited by the counsel for the respondent it has been held in para 12, as under:- “12. After hearing the rival contentions, we are of the firm view that all the four charge-sheets which were enquired into relate to serious misconduct. The respondent was unable to demonstrate before us how prejudice was caused to him due to non-supply of the enquiry authority's report/findings in the present case. It needs to be emphasized that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice on account of non furnishing of the enquiry report/findings to him.“ 22. In view of discussions made above and the judicial pronouncements it is seen that the appellant has not been able to demonstrate that as to how any prejudice was caused to him. On the contrary, in the surrounding facts and circumstances of the case it is 13. evidenced that reasonable opportunity was extended /provided to the appellant and he appeared with his defence representative, examined defence witnesses and the relevant papers were shown to him and he signed on the file of the proceeding. Thus, there was no violation of principle of natural justice. Accordingly, we find no reason to interfere with the order of the learned Single Judge. 23. In the result, the appeal is hereby dismissed.