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2015 DIGILAW 870 (GAU)

Debajit Saikia v. United Bank Of India

2015-07-21

HRISHIKESH ROY

body2015
JUDGMENT : 1. Heard Mr. B.K. Kasyap, the learned Counsel appearing for the petitioner. The respondents United Bank of India (hereinafter referred to as the Management) are represented by the learned Senior Counsel Mr. S. Dutta. 2. The petitioner was serving as a Cashier/General Clerk in the Tirap Branch of the United Bank of India and at that stage the Charge Memo dated 7.8.2004 (Annexure-B) was issued against him where it was, inter alia, alleged that the petitioner created fictitious Credit entries in the Reinvestment Plan Account (RIP) of Bank’s customers and through such manipulation and creation of fictitious Debit and Credit vouchers, an amount of Rs.9,83,616/- was misappropriated and accordingly the employee was asked to give his response to the charges. In his response dated 25.8.2004 (Annexure-C), the petitioner issued a general denial and applied for stay of the departmental proceedings until the criminal case is concluded. Not being satisfied with the response, a departmental enquiry was ordered where the petitioner didn’t initially participate. Eventually a time bound de novo proceeding was ordered by this Court in the WP(C) No.2791/2005 whereunder a fresh departmental enquiry was conducted by Abhay Kumar Mahapatra when the employee submitted his written brief of defense. 3. After conclusion of the proceeding, the inquiry report was given on 6.4.2006 (Annexure-L). On the basis of the Bank’s records, the statement of the Management witnesses and also the employee’s Confessional Statement (ME-25), all 13 charges were found to be have been proved and the petitioner was found to have illegally derived personal benefits to the tune of Rs.9,83,616/-. Concurring with the finding of the enquiry officer, the disciplinary authority issued a 2nd show-cause-notice on 3.5.2006 (Annexure-N) proposing to inflict the penalty of dismissal and eventually through the impugned order dated 19.5.2006 (Annexure-P) the delinquent was dismissed from service. Although an Appeal was filed, the Appellate Authority through the impugned order dated 20.10.2006 approved the dismissal order and rejected the Appeal. 4.1 Assailing the legality of the disciplinary proceeding, Mr. B.K. Kasyap, the learned Counsel submits that several vital documents were not furnished to the delinquent and thus it is argued that the employee was denied of a fair opportunity to defend the charges. 4.1 Assailing the legality of the disciplinary proceeding, Mr. B.K. Kasyap, the learned Counsel submits that several vital documents were not furnished to the delinquent and thus it is argued that the employee was denied of a fair opportunity to defend the charges. 4.2 The petitioner contends that the Confessional Statement (ME-25) was obtained through coercion and accordingly it is argued that the same can’t be made the basis for the adverse conclusion, reached by the inquiry officer. 4.3 The proportionality of the penalty is also being questioned by Mr. Kasyap by projecting that a co-delinquent i.e. the Branch Manager of the Bank was inflicted a lesser penalty. 5.1 Defending the disciplinary action, Mr. S. Dutta, the learned Senior Counsel on the other hand submits that the petitioner was afforded a fair and comprehensive opportunity to prove his innocence and although he participated in the de novo proceeding, he failed to produce any evidence to prove his innocence. 5.2 The Senior Counsel submits that all the charges were found to have been proved on the basis of documentary evidence and accordingly it is argued that when the genuineness of the exhibited documents were not being questioned by the delinquent, he can’t be permitted to assail the conclusion reached on the basis of such documentary proof. 5.3 The lawyer for the Management produces the minutes recorded by the inquiry officer to contend that the delinquent didn’t question the Confessional Statement (ME-25) before the Inquiry Officer and moreover despite a specific opportunity provided during the enquiry, the charged employee didn’t seek any further document during the enquiry proceeding. Accordingly it is argued that before the Writ Court, the delinquent can’t be allowed to raise any fresh plea to challenge the legality of the conclusion, when none of these pleas were ever raised during the enquiry proceeding. 6. The manipulation of the Bank records and the handwriting of the delinquent on the Withdrawal Slips (ME-18/1 to 18/12) of the three RIP Account Holders were proved by the Management witnesses and thus the receipt of payment by the delinquent himself in respect of the RIP was found to be established. Moreover, the Confessional Statement (ME-25) given by the delinquent clearly establishes the modus operandi of misappropriation. What is also relevant is that the delinquent failed to adduce any evidence to dislodge the charges although he was given adequate opportunity during the enquiry. 7. Moreover, the Confessional Statement (ME-25) given by the delinquent clearly establishes the modus operandi of misappropriation. What is also relevant is that the delinquent failed to adduce any evidence to dislodge the charges although he was given adequate opportunity during the enquiry. 7. During the departmental proceeding although the RIP Account Closing Diary was not made available, the charges against the delinquent was proved on the basis of corresponding entries in the Bank’s records, which were proved as ME-13, 15, 16 & 17 etc. On the basis of these materials whose authenticity was admitted by the employee, the Inquiry Officer concluded that the charges were established. 8. Although before this Court, the petitioner raises the plea of non-furnishing of some documents, before the Inquiry Officer, the same delinquent categorically stated on 24.2.2006 that he doesn’t require any other document and is satisfied with the genuineness of the documents produced by the Management. In fact the delinquent failed to cross-examine the MW-2 to rebut the evidence proved by the bank’s clerk. Thus at this stage, the petitioner can’t be allowed to raise such pleas for the first time. 9. When a disciplinary proceeding is drawn up against an employee, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ Court is not expected to act as an appellate authority to judge the merit of the conclusion reached by the Enquiry Officer. Interference would be justified only when there is procedural error leading to manifest injustice. But in the present case, as earlier noted, the delinquent was afforded a fair opportunity to defend the charges and the conclusion of the Enquiry Officer is based on multiple documentary evidence. Therefore interference with the disciplinary matter will not be justified in this case. 10. The finding of the Inquiry Officer in the instant case is based upon documentary evidence which were proved by the witnesses produced by the bank. The petitioner was given adequate opportunity to prove his innocence but he failed to adduce any evidence for reaching a different conclusion than the one reached by the Inquiry Officer. 11. Proceeding next to the issue of proportionality of punishment, it is true that the Manager Mr. P.K. Ghosh was given a lesser penalty. The petitioner was given adequate opportunity to prove his innocence but he failed to adduce any evidence for reaching a different conclusion than the one reached by the Inquiry Officer. 11. Proceeding next to the issue of proportionality of punishment, it is true that the Manager Mr. P.K. Ghosh was given a lesser penalty. But it must be borne in mind that the Manager was not charged with misappropriation but he was charged with supervisory lapses. Thus the allegations against the petitioner and the Manager were contextually different. In such circumstances the lesser punishment for the bank Manager can’t by itself be a ground for similar treatment of the delinquent who was directly charged with misappropriation of bank’s money. The delinquent here was a Cashier in the bank and the proven charge against him is misappropriation, while he was functioning as a trusted bank employee. When the petitioner acted for personal gain and misappropriated the bank’s money, there can be no sympathetic approach on the quantum of punishment on such delinquent and therefore I hold that the penalty of dismissal was proportionate to the proven charge. 12. In view of the above discussion, I do not find any merit in the present case and accordingly this writ petition is dismissed. No cost.