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2015 DIGILAW 403 (CAL)

State Bank of India v. Swati Mukherjee

2015-05-06

SIDDHARTHA CHATTOPADHYAY, TAPEN SEN

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JUDGMENT : Tapen Sen, J. This appeal is directed against the judgment and order dated 10.01.2014 passed by a learned Single Judge of this Court in WP 29431(W) of 2013 (Deb Dutta Mukherjee v. State Bank of India & Ors.) whereby and where under the said Hon'ble Judge set aside the orders passed by the Appellate Authority as well as by the Disciplinary Authority and also quashed the enquiry report. The learned Single Judge gave liberty to the Appellant Bank to proceed afresh with the enquiry from the stage of conclusion of evidence. 2. The learned Single Judge then proceeded to give liberty to the Appellant Bank to appoint a new Enquiry Officer, preferably with a technical knowledge in the concerned speciality. It was further observed that if the Appellant Bank desired to proceed afresh, then the Enquiry Officer should submit a fresh enquiry report after complying with all the procedures laid down therefor. 3. The learned Judge then observed that the petitioner shall continue to be on suspension as he was prior to the order of removal and shall be entitled to financial benefits in accordance with law relating to an employee under suspension. The entire exercise was directed to be completed within a period of six weeks. The petitioner was directed to co-operate. 4. The aforesaid impugned Order was passed on 10.01.2014. However, the petitioner Deb Dutta Mukherjee died on 9th February, 2014. The Appellant Bank filed the instant appeal wherein Swati Mukherjee (Widow of Deb Dutta Mukherjee) was made the sole Respondent without impleading his other heirs and legal representatives. However, when the matter was taken up, the learned Counsel appearing for the appellants had submitted that they would submit necessary particulars which was subsequently given. By an order dated 03.12.2014 another Division Bench, while dealing with CAN 9542 of 2014, directed that Sohini and Shalini, both daughters of late Deb Dutta Mukherjee and Debswati Mukherjee minor daughter through her next best friend, mother and natural guardian namely Swati Mukherjee be added as Respondents. Consequently, they were so added by the department. Facts 5. It appears that the predecessor-in-interest of these Respondents (hereinafter referred to for the sake of brevity as the Petitioner), joined the services of the Appellant Bank on 06.02.1989 in their Foreign Department. 6. On 05.05.2006, he received a Charge-sheet No. DPS/08/06-07 issued by the Disciplinary Authority and Assistant Manager (Operations) containing Six charges. Facts 5. It appears that the predecessor-in-interest of these Respondents (hereinafter referred to for the sake of brevity as the Petitioner), joined the services of the Appellant Bank on 06.02.1989 in their Foreign Department. 6. On 05.05.2006, he received a Charge-sheet No. DPS/08/06-07 issued by the Disciplinary Authority and Assistant Manager (Operations) containing Six charges. These charges were as follows:- (a) On 10.04.2004, a Standing Instruction for debit of the sum of Rs. 1,500/- per month for 24 months w.e.f. April, 2002, to Special Term Deposit Account-TDR/STDR was inserted by the Petitioner for being Credited to the Savings Bank Account No. 01190040665 standing in the name of one Shri Krishnapada Mondal. The above entries were made by the Petitioner as "Single Window Operator (SWO)" from Partition No. 35 which had been allotted to one Shri Aniruddha Sanyal, J.M.G.S-1 with User ID "ARS". Shri Sanyal however was absent on 10.04.2004. (b) On 10.04.2004, the Petitioner changed the original address of the account holder from "Village-Sukanta Pally, Gobardanga, Dist. 24 Pgs. (North)" to a new address "Mama Bhagina, Bongaon, Dist. 24 Pgs. (North)". This change was made without any request from the account holder. In fact Shri Krishnapada Mondal did not reside in the new address changed by the Petitioner. The above change was done by the Petitioner from Partition No. 35 using User ID "DDM" to misguide the Branch Officials to locate Shri Mondal. (c) The insertion of the Standing Instruction from Partition No. 35 with User ID "ARS" and unauthorized change of address from the same Partition No. 35 using User ID "DDM" indicates the mala-fide involvement of the Petitioner with the above fraudulent transactions noted in (a) & (b) above. (d) By his fraudulent noting of Standing Instruction, an amount of Rs. 36,000/- was credited to Savings Bank Account No. 01190040665 of Shri Krishnapada Mondal on 10.04.2004 by debit to Special Term Deposit Interest A/c No. 01M09099103 while no TDR or STDR stood in the name of Shri Krishnapada Mondal in the records at the Branch and no such Standing Instruction was traced out from the Branch records. (e) Thereafter, a sum of Rs. 30,000/- was withdrawn from S/B Account No. 01190040665 of Shri Krishnapada Mondal through a Cheque No. 354427 on 12.04.2004 which was posted and paid by the Petitioner through Partition No. 35. (e) Thereafter, a sum of Rs. 30,000/- was withdrawn from S/B Account No. 01190040665 of Shri Krishnapada Mondal through a Cheque No. 354427 on 12.04.2004 which was posted and paid by the Petitioner through Partition No. 35. (f) From the written statement submitted by Shri Krishnapada Mondal dated 20.04.2004, it came to light that on 09.04.2004 the Petitioner had visited his house (Krishnapada Mondal's house) and had told him that some amount was lying in his S/B Account for which a Cheque leaf was required to withdraw that amount. The Petitioner then collected a signed blank Cheque No. 354427 through which he withdrew the sum of Rs. 30,000/- but paid only Rs. 900/- to Shri Mondal on 12.04.2004. 7. According to the Disciplinary Authority, the Charge-sheet observed that the aforesaid allegations of fraudulent acts against the Petitioner were grave and serious in nature and that the Petitioner had failed to perform his duties with utmost care and diligence to protect the interests of the Bank and of the customer and therefore, such acts of gross negligence being mala-fide in nature were viewed as gross misconduct by the Bank in terms of Clause 5(d) and 5(j) of the Memorandum of Settlement dated 10.04.2002 relating to Disciplinary Action and Procedure for Workmen Staff. 8. Having received the Charge-sheet referred to above the Petitioner filed his written objection before his Enquiry Officer. Thereafter evidence was adduced both by the prosecution as well as by the defence. Before the Writ Court, the Petitioner alleged that the Enquiry Officer did not consider documentary or oral evidence in its proper perspective and that the Enquiry proceeded in a mechanical manner with the intention to hold the Petitioner guilty. 9. The Enquiry Officer submitted his report on 12.06.2007 holding him guilty of all the Six charges. The said report was made Annexure P-2 to the Writ Petition. The Enquiry Report was communicated to the Petitioner vide Letter No. DPS/23/07-08 dated 15.06.2007 requiring him to file his written submissions. Subsequently, thereafter the Petitioner filed his written submissions. 9. The Enquiry Officer submitted his report on 12.06.2007 holding him guilty of all the Six charges. The said report was made Annexure P-2 to the Writ Petition. The Enquiry Report was communicated to the Petitioner vide Letter No. DPS/23/07-08 dated 15.06.2007 requiring him to file his written submissions. Subsequently, thereafter the Petitioner filed his written submissions. Thereafter by Letter dated 16.07.2007 the Disciplinary Authority, having considered the papers/documents of the Enquiry Report and submissions made by him, and having applied his mind concurred with the views of the Enquiry Officer that all the charges had been established and that these charges constituted gross misconduct and tarnished the image of the Bank and therefore, considering the gravity of the lapses committed by him, he was of the opinion that ends of justice would be met if he was inflicted with the punishment of removal from service with superannuation benefits, i.e. pension and/or provident fund, gratuity as would be due otherwise under the rules or regulations prevailing at the relevant time and without disqualification from future employment in terms of Clause 6(b) of the Memorandum of Disciplinary Action and Procedure for Workmen Staff. The Petitioner was asked to show cause as to why such proposed penalty be not imposed upon him. The cause was directed to reach the Disciplinary Authority within Seven days from the date of receipt of the letter. 10. Having received the said letter, the Petitioner showed cause by his letter, which was received in the Office of the Disciplinary Authority on 31.07.2007. 11. Thereafter by Letter dated 07.08.2007 issued under Memo No. DPS/34/2007-08, the Disciplinary Authority imposed the penalty of removal from service with superannuation benefits, i.e. pension and/or provident fund, gratuity as would be due otherwise under the rules or regulations prevailing at the relevant time and without disqualification from future employment in terms of Clause 6(b) of the Memorandum of Disciplinary Action and Procedure for Workmen Staff dated 10.04.2002. 12. The Petitioner was given liberty to prefer an appeal before the Appellate Authority. The matter was taken up in appeal and by an Order dated 07.12.2007, the Appellate Authority rejected the appeal. 13. 12. The Petitioner was given liberty to prefer an appeal before the Appellate Authority. The matter was taken up in appeal and by an Order dated 07.12.2007, the Appellate Authority rejected the appeal. 13. The Petitioner had stated before the Writ Court that subsequently and after disposal of the appeal, he came to learn that the entire Disciplinary Proceedings had been controlled by the Vigilance Department of the Bank and that by a Memo Dated 30.10.2007, the Chief Manager (Law) by his Memo No. Law No. VG/570 had opined that the Disciplinary Authority had failed to pass a speaking order. The Petitioner also stated that he came to learn that the said letter was addressed to the Deputy General Manager (Vigilance) and on the basis thereof, the said Deputy General Manager "issued a directive, rather a command dated November 30, 2007 to the Deputy General Manager, Zonal Office, the Appellate Authority, intimating him that the disciplinary authority's order was not speaking order and would create legal problems. The appellate authority was directed to accordingly pass an order which cover up the lapses. So far as your Petitioner has been able to ascertain the said direction of the Deputy General Manager (Vigilance) to the appellate authority was part of the on going part of the complete dominance of the Vigilance Department over the departmental authority." [Quoted from Para 19 of the Writ Petition at between pages 29 & 30 of the Paper Book.] 14. With the aforesaid facts and grievances the Petitioner moved this Court wherein he prayed for quashing of the Report submitted by the Enquiry Officer dated 12.06.2007, the Orders dated 16.07.2007 and 07.08.2007 issued by the Disciplinary Authority and the Appellate Authority respectively. The impugned Order passed by the learned Single Judge on 10.01.2014 has now been challenged before us. Decision 15. Upon a perusal of the impugned Order, the learned Single Judge duly considered the fact that the Writ Petition was directed against the Order passed by the Appellate Authority which had proceeded to dismiss the Appeal on merits. Upon a further perusal of the impugned Order the learned Judge has proceeded to doubt the Enquiry Report on the ground that the Enquiry Officer had not considered the evidences which were led before him and that he had not assigned any reason in support of his conclusions. Upon a further perusal of the impugned Order the learned Judge has proceeded to doubt the Enquiry Report on the ground that the Enquiry Officer had not considered the evidences which were led before him and that he had not assigned any reason in support of his conclusions. The relevant portion of the impugned Order which makes us observe as above are the remarks of the learned Single Judge when he proceeds to say what the Enquiry Officer should have done or should not have done. These remarks of the learned Single Judge are to be found at internal Page 3 of the impugned Order (running page 255 of the Paper Book). They read as follows:- "It is true that the enquiry report tends to make generalisations at places. It is also true that some findings had been recorded at without discussing the back-up reasons. Thus it becomes difficult to discover the reasons behind the conclusion and the process of ratiocination of the enquiry officer. For example, with regard to the first charge the enquiry officer had practically not considered the stand taken by the writ petitioner on the ground that this related to a purely a technical subject and the witnesses who deposed were not technical experts. As such, he brushed aside the information of the witnesses as unacceptable. He, however, observed that merely not divulging the password to anybody does not preclude the possibility of someone surreptitiously using the password of some other person and, therefore, the petitioner could not be given any benefit of doubt on this score. This is an observation. The logic behind this is not easy to comprehend. First, if this was a technical matter which was required to be proved by technical people the prosecution was supposed to produce such technical experts at the enquiry. It cannot be gainsaid that the initial onus to establish the charges lay with the prosecution. By brushing aside the evidence of the witnesses the petitioner could not be found to be guilty of charges. The observation of the enquiry officer regarding someone surreptitiously using the password of another person is based on his own presumption drawn by him. Admittedly there absolutely no evidence for the same. There is no such deposition that the petitioner had surreptitiously used the password of any other person. The observation of the enquiry officer regarding someone surreptitiously using the password of another person is based on his own presumption drawn by him. Admittedly there absolutely no evidence for the same. There is no such deposition that the petitioner had surreptitiously used the password of any other person. That apart, even if that be so, it is very difficult to hold why the charged employee could not be granted any benefit of doubt when there was no absolute and un controvertible evidence fixing the responsibility of the petitioner. On the contrary it appears that the enquiry officer has given the benefit to the prosecution which is plainly not permissible. With regard to the other charges as well, the enquiry officer seems to have recorded the conclusions without any discussion of the materials on record as to how he had arrived at. In other words, the conclusions appear to have been more imposed than arrived at. For example, while recording his findings on charge no. 2, the enquiry officer says: "whether and how the change of address has affected the system is the area of technical expert but the fact remains that DDM was instrumental in change of address without any letter from the depositor to this effect. Hence the charge no. 2 is conclusively proved." How and on what basis he came to this conclusion that the charged employee was instrumental in the change of address has not been clearly given. It has been by the enquiry officer that there is least possibility that any other person would be involved and he had fixed the responsibility of the charged employee on the principle of preponderance of probability which he says: "on conclusively proves that CSC had resorted to such action to further his own interest." [Quoted] 16. Upon a perusal of the aforementioned remarks it is evident that the learned Single Judge considered the report of the Enquiry Officer and questioned the manner in which the said Enquiry Report had proceeded. By observing that the Enquiry Officer had practically not considered the stand of the Writ Petitioner that this related to a purely technical subject and that the witnesses who had deposed were not technical experts, in our opinion, amount to taking upon the burden of an Enquiry Officer. By observing that the Enquiry Officer had practically not considered the stand of the Writ Petitioner that this related to a purely technical subject and that the witnesses who had deposed were not technical experts, in our opinion, amount to taking upon the burden of an Enquiry Officer. This could not have been done and moreover the other remarks to the effect that the observation of the Enquiry Officer was bereft of logic because of reasons given by the learned Single Judge himself, in our opinion, again amounts to clothing the Court with the functions of an Enquiry Officer. Moreover, in the same judgment, we have noticed that the learned Single Judge has himself proceeded to give reasons as to what should have been done by the Enquiry Officer and what should not have been done by him. 17. Furthermore, in internal Page 6 of the impugned Judgment the learned Single Judge has considered the point raised by the Writ Petitioner which he has termed to be a technical point. He has stated that a very specific point taken by the delinquent employee regarding improbability of setting up the standing instructions within 31 seconds in the system, and that this was not considered while discarding the contentions of the Petitioner. The High Court, exercising scope of judicial review cannot proceed to supply or suggest that a particular evidence should or should not have been taken into consideration while dealing with matters pertaining to departmental proceedings. 18. While proceeding with the aforesaid suggestions and/or remarks the learned Judge then dealt with the Order of the Appellate Authority. We have, ourselves, perused the Order of the Appellate Authority. He has taken into consideration the point taken by the delinquent employee with regard to the improbability of setting up standing instructions within 31 seconds. The Appellate Authority has observed that the concluded finding on this point was that such a standing instruction was set up in the system from the ID of ARS who had logged on Partition No. 35 on 10th April, 2004 which was earmarked for the Charge-sheeted employee. The Appellate Authority has observed that the concluded finding on this point was that such a standing instruction was set up in the system from the ID of ARS who had logged on Partition No. 35 on 10th April, 2004 which was earmarked for the Charge-sheeted employee. The Appellate Authority therefore, came to the conclusion and in our opinion, rightly so, that the need of technical opinion whether a standing instruction can be set up within 31 seconds or not was not relevant for the case because the standing instruction had been made from the ID of ARS and at no point of time the Charge-sheeted employee had ever disputed that the said standing instruction had not been set up by ARS. Therefore, by holding that this fact was not tested by cross-examination by the prosecution is an opinion which, according to us, amounted to suggesting that this should have been taken into consideration by the Enquiry Officer. The fact remains that this point was adequately dealt with by the Appellate Authority. 19. The Appellate Authority then proceeded to hold that it was an accepted position that the ID of ARS was logged on for 31 seconds and it was thereafter that the Charge-sheeted employee logged on to it and that it would not be possible for any person to complete the job within 31 seconds by another person and therefore it was obvious that the Charge-sheeted employee had himself logged on to the said ID from the same Partition without being noticed because on that day the actual incumbent of the ARS was on leave. 20. The Appellate Authority also therefore rightly confirmed the findings of the Disciplinary Authority that it was the Charge-sheeted employee who had logged on as ARS and had created the standing instruction. 21. The Appellate Authority also, while dealing with Charge No. B, held that it was an established position that the Charge-sheeted employee had changed the address on the basis of an application of the Account holder but strangely, there was no trace of such an application in the records of the Bank. 22. In a Judgment of the Hon'ble Supreme Court passed in the case of Mithilesh Singh v. Union of India & Ors. 22. In a Judgment of the Hon'ble Supreme Court passed in the case of Mithilesh Singh v. Union of India & Ors. reported in (2003) 3 SCC 309 , it has been held that the scope of interference with punishment awarded by Disciplinary Authority is very limited and unless the punishment appears to shockingly disproportionate, the Court cannot interfere with the same. Similar view has been taken by the Hon'ble Supreme Court in the case of V. Ramana v. APSRTC & Ors. reported in AIR 2005 SC 3417 wherein their Lordships have held that unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court, there is no scope for interference. In the instant case, we cannot lose sight of the fact that the concerned employee was an appointee of the Bank and such Officers hold their office on the basis of faith and trust reposed in them by the public at large. A Bank Officer is required to exercise high standard 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 employee. Good conduct and discipline are inseparable from the functioning of every Officer/Employee of the Bank. The very discipline of an organisation and more particularly of a Bank is dependent upon each of its Officers and Officers acting and operating within their allotted sphere. It is for this reason that when a Bank Officer commits misconduct, as in the present case, for his personal ends and against the interest of the Bank and the depositors, such a person must be dealt with iron hands and he does not deserve to be dealt with leniently. In support of such an analogies, this Court draws inspiration from two Judgments of the Hon'ble Supreme Court of India passed in the case of State Bank of India & Anr. v. Bela Bagchi & Ors. reported in (2005) 7 SCC 435 and in the case of State Bank of India v. Ramesh Dinkar Punde reported in (2006) 7 SCC 212 (para 21). v. Bela Bagchi & Ors. reported in (2005) 7 SCC 435 and in the case of State Bank of India v. Ramesh Dinkar Punde reported in (2006) 7 SCC 212 (para 21). The charges as against the concerned employee were such that it amounted to not only fraudulently tampering with the records of the Bank but also withdrawing a sum of Rs. 30,000/- from the S/B Account of some other person and then paying him only a sum of Rs. 900/-. The charges therefore were grave in nature considering that the Charge-sheeted employee was an appointee of the Bank. The punishment of removal service did not end there. This punishment clearly stated that the concerned employee would get all superannuation benefits i.e. pension and/or provident fund, gratuity as would be due otherwise under the Rules and Regulations and without disqualification from future employment. This, in our opinion, is a punishment which cannot be said to be a punishment that shocks our conscience or that it is shockingly disproportionate. 23. In another Judgment of the Hon'ble Supreme Court passed in the case of K. Vinod Kumar v. S. Palanisami reported in (2003) 10 SCC 681 it has been held that in proceedings and decisions taken in administrative matters, the scope of judicial review is confined to the decision making process and does not extend to the merits of the decision taken. In the instant case, we do not find any flaw in the decision making process because all necessary procedures required for conducting a departmental proceeding were strictly adhered to and then it was followed by an Enquiry Report, Order of the Disciplinary Authority and then was finally concluded by an Order of the Appellate Authority. Therefore, we are not inclined to hold that the scope of judicial review in this case should be extended to the merits of the decision taken. 24. The Order of the learned Single Judge which has been impugned in this case has been challenged on yet another ground submitting inter-alia that the said order amounts to re-appreciating evidence. What could have been done and what could not have been done amounts to taking upon itself the jurisdiction of an Enquiry Officer. In a Judgment of the Hon'ble Supreme Court passed in the case of State Bank of India & Ors. What could have been done and what could not have been done amounts to taking upon itself the jurisdiction of an Enquiry Officer. In a Judgment of the Hon'ble Supreme Court passed in the case of State Bank of India & Ors. v. Ramesh Dinkar Punde reported in (2006) 7 SCC 212 it has been held inter-alia that it is impermissible for the High Court to re-appreciate the evidence which had been considered by the Enquiry Officer, Disciplinary Authority and the Appellate Authority. In the instant case also, from the facts collected and the report submitted by the Enquiry Officer which have been accepted by the Disciplinary Authority and the Appellate Authority, sufficient and/or active connivance of the Charge-sheeted employee was writ large and it was also sufficient to connect him with the misconducts alleged. The High Court is not an Appellate Authority over such findings of fact and therefore its interference in the domain of findings of fact by the Enquiry Officer amounts to deviating from this well-settled principle of law. 25. For all the reasons stated above we are of the view that the Order of the learned Single Judge passed on 10.01.2014 in WP No. 29431(W) of 2013 cannot be sustained. The same is therefore set aside and as a consequence this Appeal sands Allowed. 26. In view of our reasons given above and the consequential findings recorded, we are of the view that no useful purpose will be served by allowing the Writ Petition to continue. We, therefore, Dismiss the Writ Petition also. 27. Finally, we record that in view of this judgment the Order of punishment passed by the Disciplinary Authority remains intact and therefore the Appellant Bank should now proceed to strictly adhere to the terms and conditions of the said punishment to the effect that the Petitioners must be paid all superannuation benefits i.e. pension and/or provident fund, gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time. The clause with regard to there being no disqualification from future employment now becomes redundant. 28. All payments due as a consequence of the Order of punishment was now be released by the Bank to the Petitioners within a period of 6 (six) weeks from today. 29. There shall be no Order as to costs. 30. The clause with regard to there being no disqualification from future employment now becomes redundant. 28. All payments due as a consequence of the Order of punishment was now be released by the Bank to the Petitioners within a period of 6 (six) weeks from today. 29. There shall be no Order as to costs. 30. Urgent Certified Copy to be issued upon appropriate applications being made in that regard. F.M. Appeal allowed.