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2015 DIGILAW 1301 (GAU)

Boa Penji v. State Bank of India

2015-10-07

HRISHIKESH ROY, SUMAN SHYAM

body2015
JUDGMENT : Hrishikesh Roy, J. Heard Mr. P.K. Tiwari, the learned senior counsel appearing for the appellant. The respondent State Bank of India (SBI) and their officers are represented by the learned senior counsel Mr. S.S. Sharma. 2. The appellant was working as a Deputy Head Cashier at the Itanagar Branch of the SBI when the Charge Memo dated 5.3.2001 was issued to him where 9 charges were levelled and those are extracted here-in-below for ready reference: "(i) On 27.7.1999 you used your status as staff member to receive payment of Cheque No. 896881 dated 27.7.1999 for Rs. 2.150 lakhs on behalf of the customer. The amount of the said cheques represents the proceeds of a forged SC (short credit). (ii) On 3.8.1999 you used your status as staff member to induce the dispatch clerk, Smt. Bobby Choudhury of Itanagar branch to hand over the Itanagar Branch SCs No. 21/409 to 21/412, aggregating Rs. 3,87,86,000/- to one Shri P. Tassar who was not known to the dispatcher. These SCs together with the credit advices were brought back to the Branch at a later date with forged signatures and used to defraud the bank to the tune of Rs. 42 lakh on 23.8.1999. (iii) On 3.8.1999 the petitioner used his status as staff member to receive payment of cheque No. 896885 dated 3.8.1999 for Rs. 15 lakhs although the petitioner was not the payee of the cheque, which money represents the proceeds of a fraudulent transaction. (iv) On 11.8.1999, the petitioner used his status as staff member to receive payment of cheque No. 896887 dated 11.8.1999 for Rs. 2 lakhs when he was not the payee of the cheque. The amount of the cheque represents proceeds of a fraudulent transaction. (v) On 23.8.1999, the petitioner personally collected the token for cheque No. 743443, used his status as a member of the staff to get the cheque passed in haste and took delivery of the amount of Rs. 42 lakhs from the paying cashier even before the passed instrument was received by the cashier. The amount represents the proceeds of the SCs fraudulently credited to an account which was opened a few weeks before on 7.7.1999. 2(i) On 31.7.1999 an amount of Rs. 16,000/- was credited to the petitioner's current account in the Itanagar Branch. (ii) On 3.8.1999 an amount of Rs. The amount represents the proceeds of the SCs fraudulently credited to an account which was opened a few weeks before on 7.7.1999. 2(i) On 31.7.1999 an amount of Rs. 16,000/- was credited to the petitioner's current account in the Itanagar Branch. (ii) On 3.8.1999 an amount of Rs. 15,000/- was deposited into the petitioner's recurring deposit account in Itanagar Branch. (iii) On 23.8.1999 a sum of Rs. 50,000/- was deposited to account No. OLCC/4/98 of Nisha Associates, maintained at Vijaya Bank, Itanagar. The petitioner's wife Smt. Nisha Boa is the owner of this firm. (iv) An amount of Rs. 85,468/- was credited to current account No. 14/1077 of EJ. Enterprise in Itanagar Branch on 23.8.1999 through a transfer transaction from out of the proceeds of fraudulent SCs. The proprietress of the said Firm is Smt. Nisha Boa, the petitioner's wife." 3. In his reply of 31.3.2001 (Annexure II), all the charges were denied but finding the explanation to be unsatisfactory, a disciplinary enquiry was ordered to examine the charges. In the first round, the enquiry officer exonerated the delinquent but the disciplinary authority disagreed with the finding and ordered for a de novo enquiry. 4. Aggrieved by the decision for the de novo enquiry, the charged employee challenged the order through a writ petition but the same was dismissed. But in the resultant WA No. 51(AP)/2006 filed by the delinquent, the Division Bench on 26.4.2007 (Annexure III) quashed the order for a de novo enquiry but permitted holding of further enquiry where the parties can produce necessary evidence. 5. During the pendency of the writ appeal, the earlier enquiry officer Phuntsok Rinchin took voluntary retirement w.e.f. 31.1.2007 and, therefore, for the further enquiry, the bank appointed one Nidhir Ranjan Kar to conduct the proceeding. The report of the enquiry officer was given on 27.6.2009 and the Charge Nos. 1(i), (ii) and 2(iii) were found to be not proved but the other charges were held to be proved. The inquiry report was then considered and the disciplinary authority imposed the penalty of removal from service with superannuation benefits against the delinquent, through the impugned order dated 10.9.2009. The resultant approach to the Appellate Authority was dismissed on 10.3.2010. 6. Aggrieved by his penalization the delinquent re-approached the High Court through the WP(C) No. 256(AP)/2010 but this case was dismissed on 11.3.2011 which led to the W.A. No. 20(AP)/2011. The resultant approach to the Appellate Authority was dismissed on 10.3.2010. 6. Aggrieved by his penalization the delinquent re-approached the High Court through the WP(C) No. 256(AP)/2010 but this case was dismissed on 11.3.2011 which led to the W.A. No. 20(AP)/2011. Since para 23.7.2 of the Procedure For Taking Disciplinary Action : Award Staff of the SBI provided that enquiry officer should not be changed after commencement of the enquiry, before the Division Bench, the delinquent cited the procedural lapses in conducting of the proceeding because of the replacement of the enquiry officer. This contention on the procedural lapses was accepted by the Court and accordingly the decision of the Single Judge was set aside and the Division Bench granted all the relief’s to the delinquent, through the judgment dated 7.3.2012. 7. Aggrieved by the High Court's interference with the disciplinary action, the SBI approached the Supreme Court through the Civil Appeal No. 9391/2014. On the midway change of the enquiry officer, the Apex Court held that paragraph 23.7.2 of the Procedure for Taking Disciplinary Action : Award Staff of the SBI is not a mandatory provision and when the enquiry officer retired from service, the appointment of a replacement became inevitable. But noticing that the High Court didn't go into the merit of the case but based its decision on the procedural infirmity arising out of the change of the enquiry officer, the Supreme Court remanded the writ appeal to the High Court for consideration of the merit of the appellant's contentions and thus we are once again confronted with the Writ Appeal No. 20/2011. 8.1 Mr. P.K. Tiwari, the learned senior counsel refers to the Charge Memo and categorises the first five charges into one segment and the next four charges into 2nd segment. The guilty finding recorded in respect of the charges are contended to be perverse as relevant materials were ignored and the decision was given on the basis of inferences drawn by the enquiry officer. 8.2 The senior counsel refers to the minutes of the enquiry proceeding to project that P.W.2 and P.W.3 had both testified on the prevalent practice at the Itanagar Branch of the SBI of the bank employees personally assisting the VIP customers to complete their transactions and accordingly the counsel argues that no misconduct was committed by the delinquent. 8.3 Since the concerned cheques against charge Nos. 8.3 Since the concerned cheques against charge Nos. 1 (iii), (iv) and (v) were payable to Kardu Taipodia who was the customer of the bank, in the absence of any complaint by the payee of any wrong doing by the delinquent or loss of money to the payee, Mr. Tiwari argues that the charge of misconduct has no basis. 8.4 Insofar as the 2nd segment charges pertaining to the transaction in the bank account of the delinquent and his wife, Mr. Tiwari argues that the wife was conducting her independent business and no link with any illegal activity could be shown with the transactions made in her account. For the Rs. 16,000/- and Rs. 15,000/- deposited in the petitioner's account, those were rental earning of the delinquent and this can't give rise to a charge of misconduct. Thus, the justification for disciplinary action against the delinquent for the 2nd segment charges are questioned by the appellant's lawyer. 8.5 The appellant contends that the enquiry proceeding was flawed since the enquiry officer acted on the documents without those being exhibited properly as is mandated by law. Moreover the list of documents and the witnesses had not accompanied the charge memo furnished to the delinquent. 8.6 Referring to the cryptic order passed by the disciplinary authority, the learned counsel submits that the concerned authority failed to discharge his responsibility to evaluate the merit of the finding and the nature of the evidence and, therefore, Mr. Tiwari argues that the decision of the disciplinary authority and also of the appellate authority stand vitiated in law. 9.1 On the other hand, Mr. S.S. Sharma, the learned senior counsel submits that employees of the bank are not expected to provide personal service to the bank customers and he further contends that it was clearly established that the delinquent had received the cash on behalf of the payee from the cashier of the bank and, therefore, the appellant committed misconduct by going beyond his call of duty. 9.2 The senior counsel argues that disciplinary proceeding was conducted by the bank officials who are not legally trained for the job and, therefore, the standard of scrutiny for such disciplinary proceeding has to be reasonable and the same can't be vitiated merely because of some defect in the mode and manner of acceptance of evidence. 10. 9.2 The senior counsel argues that disciplinary proceeding was conducted by the bank officials who are not legally trained for the job and, therefore, the standard of scrutiny for such disciplinary proceeding has to be reasonable and the same can't be vitiated merely because of some defect in the mode and manner of acceptance of evidence. 10. When the charges against the delinquent are noticed, what strikes the court is that the delinquent is not charged with any misappropriation or fraudulent withdrawal and the substance of the charge is that he received the cash from the cashier on behalf of the payee Kardu Taipodia, who happens to be a former Minister and a valued customer of the bank. The P.W.2 and P.W.3 were familiar with the working pattern in the Itanagar Branch of the SBI and both stated about the prevalent practice of VIP customers being extended special courtesies by the bank's employees while the customer himself sits in the bank manager's chamber. On specific query made to the banks lawyer, Mr. S.S. Sharma has frankly stated that no circular was ever issued by the SBI to stop extension of such courtesies by the bank employees to the VIP customers. If this be the position, this court is left wondering how by extending the usual courtesy to a high value customer, the delinquent had committed a misconduct under the disciplinary rules of the bank. 11. What was found to be proved against the delinquent in the first category charges is that despite not being a payee for the 3 cheques the delinquent had received the concerned amount from the bank's cashier and this itself was construed to be a misconduct warranting disciplinary action. But the important question is whether the payee was at all aggrieved by the courtesy extended to him and the most significant aspect of the matter is the absence of any complaint by the payee himself, about any short delivery by the delinquent. Moreover there is nothing on record to show that the bank had suffered any loss on account of the act of the delinquent. 12. Moreover there is nothing on record to show that the bank had suffered any loss on account of the act of the delinquent. 12. The evidence of P.W.3 shows that there is no bar for the wife of a SBI employee to do business independently and in such circumstances, the transactions in the business accounts of the wife in our perception, can have no implication of misconduct for the bank's employee particularly when no connection could be established with the transactions in the wife's account with any illegal activity in the SBI Branch or with the delinquent himself. Moreover no misconduct can be presumed from the deposit of legitimate rental income in the delinquent's account. 13. Upon meticulous scrutiny of the enquiry report we find that the charges could not be established even under the criteria of preponderance of probabilities and the findings appeared to have been given on the inferences drawn by the enquiry officer without any material basis. Thus it appears to be a case of no evidence. More importantly the allegations as they stand can't at all be construed to be misconduct under any legal basis. 14. In view of the above conclusion it is apparent that the delinquent was penalized without any legal justification. Hence according to us it is a case for interference with the disciplinary proceeding and accordingly the writ appeal stands allowed. As a result, the inquiry report dated 27.6.2009, the penalty order dated 10.9.2009 and also the appellate authority's order dated 10.3.2010 are set aside and quashed. Consequently the respondent bank is directed to reinstate the appellant within 8 weeks from today. Insofar as the back wages is concerned, at this stage, we feel that this aspect should be left to be decided by the employer. Thus, the appellant is permitted to file a representation for back wages and the same is directed to be considered by the employer with a speaking order in accordance with the law, within 2 months of receipt of representation. 15. With the above order, the appeal stands allowed to the extent indicated. No cost.