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2015 DIGILAW 372 (ORI)

Tapas Kumar Roul v. State Bank of India

2015-06-19

S.N.PRASAD

body2015
JUDGMENT S.N.PRASAD,J. - The petitioner being aggrieved with the order of punishment passed by the disciplinary authority as contained in Annexure-20 dated 11.1.1999 and the appellate order as contained in Annexure-25 dated 20.7.1999, has approached this Court. 2. Brief facts of the case is that the petitioner holding the post of Deputy Manager(Cash) in the State Bank of India at Old Town Branch Bhubaneswar-2 and on 5.10.1994 the petitioner while officiating as Deputy Manager (Cash) at about 4.10 P.M. during closing of the cash the petitioner had requested Mr. R.P.Dalua, Deputy Head Cashier to recount the cash and had given 14 packets of notes. Mr. Dalua returned 13 packets of notes. On 6.10.1994 the Branch Manager of the concerned Branch is reported the matter to the Assistant General Manager regarding missing of Rs.10,000/- and on the basis of the said report an enquiry was conducted. However, in the inquiry it was found shortage of cash and the Branch Manager had issued a show cause notice to the petitioner to explain as to why the laid down procedure were not observed by the petitioner which resulted in the shortage, to which the petitioner submitted his explanation on 6.1.1995 explaining the circumstances under which Mr. Dalua has taken the money resulting shortage of cash. Finding has been given holding the petitioner as well as Mr. R.P.Dalua, Deputy Head Cashier are equally responsible for shortage of cash of Rs.10,000/-. Thereafter, order has been passed for recovery of Rs.5000/- each, the matter has also been reported to the police and on the basis of the same, criminal case has been initiated under Section 409 of the I.P.C. and on 14.8.1996 and released on 16.8.1996. Since the petitioner was taken into custody for a period of 48 hours, the petitioner was suspended on the ground of detention against which the petitioner has filed an appeal, the said appeal was rejected and suspension of the petitioner was revoked. On 24.12.1996 the petitioner was served with memorandum of charges and accordingly disciplinary proceeding was initiated against the petitioner by inflicting the following charges: “(i) On 5.10.94, while delivering 14 packets of notes to the Dy.Head Cashier for recounting, he did not obtain the acknowledgement of the Dy. Head Cashier in the “Cash Receipt/delivery Book. (ii) When the Dy. On 24.12.1996 the petitioner was served with memorandum of charges and accordingly disciplinary proceeding was initiated against the petitioner by inflicting the following charges: “(i) On 5.10.94, while delivering 14 packets of notes to the Dy.Head Cashier for recounting, he did not obtain the acknowledgement of the Dy. Head Cashier in the “Cash Receipt/delivery Book. (ii) When the Dy. Head Cashier placed back the said packets on his table after recounting, he did not check the packets instantly and kept himself busy in preparing the day’s figures and recounting other notes. (iii) Thus the laid down procedures were not observed by him which resulted in the shortage of Rs.10,000/- in the day’s closing cash balance and the loss of Rs.10,000/- (Rupees ten thousand only) was also not made good by him.” The petitioner has participated in the enquiry and defended himself but the Enquiry Officer has found the charge proof and thereafter second show cause notice was issued to the petitioner which is duly replied but the disciplinary authority has inflicted punishment vide order dated 11.1.1999 by which pay of the petitioner was reduced to lower stage in timescale of pay for a period of one year without cumulative effect and not adversely affecting the petitioner’s pension and period the suspension was treated as not on duty. 3.The petitioner has preferred appeal against the order of punishment in conformity with the order of the disciplinary authority and the same has also been rejected vide order dated 28.7.1999. 4. Grounds taken by the petitioner by assailing the impugned order are: “(i) that the petitioner has not been provided with opportunity of being heard since the documents, basis upon which memorandum of charge has been framed, has not been supplied to the petitioner. (ii) Mr. R.P.Dalua who was arrayed as P.W.4 has not been examined. (iii) Preliminary enquiry in which Mr. R.P.Dalua has also been said to be equally involved in the illegality, has not been considered by the Enquiry Officer. (iv) The appellate authority has passed order without considering the detail points replied by the petitioner in the memorandum of appeal. 5. On the other hand, learned counsel for the opposite parties-Bank has submitted order of punishment is genuine, the petitioner being holding the post of Deputy Manager(Cash) and being the custodian of cash and as such the shortage of money is due to accountability of the petitioner. 6. 5. On the other hand, learned counsel for the opposite parties-Bank has submitted order of punishment is genuine, the petitioner being holding the post of Deputy Manager(Cash) and being the custodian of cash and as such the shortage of money is due to accountability of the petitioner. 6. Heard learned counsel for the parties and perused the documents on record. 7. The fact which is not in dispute is that the petitioner was holding the post of Deputy Manager(Cash) and certain amount was to be counted for maching of cash balanace on 5.10.1994. There is no dispute that the petitioner was holding the post of Deputy Manager(Cash) and Mr. R.P.Dalua was holding the post of Head Cashier and the petitioner has given money none other than his subordinate who is holding the post of Head Cashier and as such the same charge has been framed against Mr.Dalua and after concluding of the said departmental proceeding against Mr. Dalua, same punishment has been imposed. The Enquiry Officer has given a specific finding regarding proof of guilt of the petitioner and the same has been accepted by the disciplinary authority thereby punishment of withholding one increment without cumulative effect for a period of one year has been imposed. 8. It is settled proposition of law that in the order of punishment passed in case of disciplinary proceeding High Court in exercise of power under Article 226 of the Constitution of India cannot sit as an appellate authority to reappraise the facts. Moreover, in this case, regular disciplinary proceeding has been initiated and the Enquiry Officer after perusing the relevant documents including preliminary enquiry report in which accountability has been fixed upon the petitioner as well as upon Mr.Dalua and both of them had been departmentally proceeded, punishment has been imposed keeping in view that the petitioner was holding the post of Deputy Manager(Cash) and was an employee of the Bank is suppose to discharge duty with utmost sincerity but he was negligent in discharge of duty by handing over 14 packets of notes to his subordinate and thereafter one packet of note was misplaced due to which amount of Rs.10,000/- has been found to be shortage from the cash of the Bank. 9. 9. Now the question of interference by this Court under Article 226 of the Constitution of India is concerned, this has been answered by the Hon’ble Supreme Court in the case of State of U.P. and others –vs- Raj Kishore Yadav and another, reported in (2006)5 SCC 673 wherein at paragraph-4 it has been held: “ xxx It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and,therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed. xxx” 10. In this case, petitioner was holding the post of Deputy Manager(Cash) but he performed his duty in negligent manner by handing over 14 packets of notes to the Deputy Head Cashier and thereafter one packet of notes was missing, which in my considered view is gross negligence on the part of the petitioner. 11. The petitioner has been initiated departmental proceeding in which the petitioner has been provided opportunity of being heard to defend the same, the Enquiry Officer has found the charge proved against the petitioner and thereafter punishment has been imposed with withholding of one increment without cumulative effect for a period of one year. 12. So far as judicial review of order of punishment is concerned, Hon’ble Supreme Court has been decided in catena of decisions reported in the case of General Manager(Operations), State Bank of India and another –v- R.Periyasamy reported in (2015)3 SCC 101 wherein at paragraphs 9 and 12 which is quoted below: “In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya:(2011) 4 SCC 585, this Court observed as follows: (SCC p. 587, para 7) “7. It is now well settled that the Courts will not act as an appellate Court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, Courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India ( (1995) 6 SCC 749 ;, Union of India v. G. Ganayutham: (1997) 7 SCC 463 ; Bank of India v. Degala Suryanarayana: (1999)5 SCC 762 and High Court of Judicature of Bombay v. Shashikant S. Patil : (2000)1 SCC 416 )” It is not necessary to multiply authorities on this point. Suffice it to say that the law is well settled in this regard. Further, in Union Bank of India v. Vishwa Mohan : (1998) 4 SCC 310 , this Court was confronted with a case which was similar to the present one. The respondent therein was also a bank employee, who was unable to demonstrate to the Court as to how prejudice had been caused to him due to non-supply of the inquiry authorities report/findings in his case. This Court held 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 were not to be observed, the Court held that the confidence of the public/depositors would be impaired. This Court held 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 were not to be observed, the Court held that the confidence of the public/depositors would be impaired. Thus, in that case the Court set aside the order of the High Court and upheld the dismissal of the bank employee, rejecting the ground that any prejudice had been caused to him on account of non-furnishing of the inquiry report/findings to him.” In the case of Avinash Sadashiv Bhosale v. Union of India,reported in (2012)13 SCC 142 at paragraph-58 Hon’ble Supreme Court held : “ It is a settled proposition of law that the findings of an enquiry officer cannot be nullified so long as there is some relevant evidence in support of the conclusions recorded by the inquiry officer.xxx” In the case of State of Uttar Pradesh and another –vs- Man Mohan Nath Sinha and another, reported in (2009) 8 SCC 310 at paragraph-15 the Honble Supreme Court held: “The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a Court of appeal and reach its own conclusions. xxx” In this case, nothing has been argued and brought on record that the finding of the Enquiry Officer is unjust rather the same is based upon relevant facts. Hence, relating to the ratio relied upon by the Hon’ble Supreme Court as referred to above, it cannot be said that finding of the Enquiry Officer which is the basis of imposing punishment upon the petitioner, is improper. 13. Moreover, from perusal of the record and the order passed by the revisional authority where finding given by the Enquiry Officer has been discussed, it is settled that finding of Enquiry Officer cannot be nullified so long as there is some relevant facts in support of the conclusion recorded by the Enquiry Officer. 14. 13. Moreover, from perusal of the record and the order passed by the revisional authority where finding given by the Enquiry Officer has been discussed, it is settled that finding of Enquiry Officer cannot be nullified so long as there is some relevant facts in support of the conclusion recorded by the Enquiry Officer. 14. In this case the authority has taken a lenient view against the petitioner which cannot be said to be disproportionate punishment against the petitioner rather it seems reasonable considering the length of service of the petitioner. 15. Considering the ratio laid down by Hon’ble Supreme Court and considering the ratio of charge, nature of punishment inflicted by the opposite party-Bank, I am not inclined into interfere with the order of punishment. 16. In view of the facts stated hereinabove, I do not find any merit in the writ petition which is dismissing being devoid of merit. Petition dismissed.