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2016 DIGILAW 221 (GAU)

Dambarudhar Barman v. Central Bank of India

2016-03-28

MANOJIT BHUYAN

body2016
JUDGMENT Manojit Bhuyan, J. - The present appellant who at the relevant time served as CTO at Maharipara Branch of the Central Bank of India was dismissed from service following a regular departmental proceeding. The order of dismissal dated 01.02.2010 was also upheld on appeal by the Appellate Authority on 28.02.2011. The challenge made to the said order in WP(C) 2617/2011 was rejected/dismissed vide Order dated 09.01.2015 which gave rise to the present appeal. 2. We have heard Mr. N. Barua, learned counsel representing the appellant as well as Mr. N.C. Das, learned senior counsel assisted by Mr. A. Das representing the Central Bank of India. 3. Before proceeding further we would like to place on record that the appellant has confined his arguments only on the point of proportionality of the punishment. On this issue the appellant has subtly referred to the merits of the charges and to the findings of the Enquiry Officer as well as to the findings and decisions of the Appellate Authority dated 28.02.2011 which provides an insight to the extent of complicity and collusion on the part of the appellant along with one Sri Karuna Kanta Das, Head Cashier who had been instrumental in causing irregularities while receiving cash from the Bank's customers on various dates. The charge of misappropriating deposits of customers for personal benefit was termed as eroding the reputation of the Bank in the eyes of the public. There is evidence to show that with a view to nullify the gravity of irregularities, the appellant had also taken upon himself to repay an amount of Rs. 2,25,000/- to the named customers being the amount which he had received from said Sri Karuna Kanta Das. Over and above, the appellant had also made payment of an amount of Rs. 21,000/- to the Bank on 16.03.2009. The conduct of the appellant was not only exposed in the disciplinary proceedings but the same had also been taken note of by the appellate authority, not to speak of the same having been noticed in details by the learned Single Judge. 4. Mr. N. Barua, learned counsel submits that the appellant has been made a scapegoat and his involvement is only limited to the extent of paying back Rs. 2,25,000/- to the customers and the return of a further sum of Rs. 21,000/- to the Bank. According to Mr. 4. Mr. N. Barua, learned counsel submits that the appellant has been made a scapegoat and his involvement is only limited to the extent of paying back Rs. 2,25,000/- to the customers and the return of a further sum of Rs. 21,000/- to the Bank. According to Mr. Barua, having regard to the role of the appellant in the entire episode, his dismissal from service was not warranted. It is not only arbitrary but wholly disproportionate which calls for interference of this Court. 5. On the other hand Mr. N.C. Das, learned senior counsel submits that there is sufficient evidence to show that the appellant had colluded with Sri Karnua Kanta Das in causing misappropriation of the deposited money. On the question of the proportionality of the punishment vis-a-vis the offences charged with, Mr. Das refers to the case of Chairman and Managing Director, United Commercial Bank and Others v. P.C. Kakkar reported in (2003) 4 SCC 364 as well as in the case of Regional Manager, U.P. SRTC, ETAWAH and Others v. Hoti Lal and Another reported in (2003) 3 SCC 605 to say that unless the punishment imposed by the disciplinary authority shocks the conscience of the Court, the same would not be subject to judicial review. Mr. Das also submits by relying upon the case of Regional Manager (supra) that when an employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, the matter should be dealt with iron hands and not leniently. A bigger responsibility is cast upon the discharge of duties by a Bank Officer who is required to act with utmost integrity, honesty, dedication and diligence and must do nothing unbecoming of a Bank Officer. According to Mr. Das and having regard to the then position and status of the appellant as well as the breach of discipline on the part of the appellant, the order of dismissal does not suffer from the vice of the dis-proportionality. 6. We have considered the rival submissions of the parties as well as the judgment under appeal. For a better appreciation, the findings and decisions of the learned Single Judge are reproduced hereunder: "23. In the instant case, the petitioner was with the Bank job of trust and responsibilities, which he betrayed by his conduct referred to in the charges levelled against him. For a better appreciation, the findings and decisions of the learned Single Judge are reproduced hereunder: "23. In the instant case, the petitioner was with the Bank job of trust and responsibilities, which he betrayed by his conduct referred to in the charges levelled against him. Although he tried to justify his action relatable to the charges with the plea of helping his colleague with innocent motive but unless he himself was involved in the transactions, more particularly, the ones relatable to alteration of the amounts in the withdrawal slips, such transactions would not have been possible. As noted above, it was the duty of the petitioner to inform the Bank Management about the return of the amounts by Shri Karuna Kanta Das to him (even if it is believed) but instead he was more concerned with his colleague than the Bank and its customers. MEX-12 is the documents pertaining to the claims received from as many as 237 customers of Maharipara Branch in which the petitioner had been working. Such claims pertain to various dates on which amounts were deposited by not accounted for. The amount stood at Rs. 41 Lakhs (approximate). 24. Apart from the findings recorded by the Enquiry Officer referring to all the evidences on record, the disciplinary authority also independently considered the materials on record while passing the detailed order on penalty. On appeal, the appellate authority also discussed the relevant materials on record and passed the impugned appellate order. I see no reason to interfere with the said findings of fact. It is not the case of the petitioner that the findings recorded by the Enquiry Officer, disciplinary authority and the appellate authority are perverse and/or based on no evidence at all. Needless to say that it is only when findings are found perverse or based on no evidence, the writ Court exercising its power of judicial review is entitled to interfere with such findings. Even insufficiency of evidence cannot be a ground to interfere with such findings. It is the preponderance of probability, which matters in a departmental proceeding, unlike a criminal proceeding where the test is "beyond all reasonable doubt." 7. Even insufficiency of evidence cannot be a ground to interfere with such findings. It is the preponderance of probability, which matters in a departmental proceeding, unlike a criminal proceeding where the test is "beyond all reasonable doubt." 7. While rendering the judgment under appeal reference has also been made to the case of Narendra Nath Pal v. State of U.P., reported in (2007) 15 SCC 775 wherein the Apex Court was seized with a case concerning charges of misappropriation of money and using false receipts on plain papers. On the said charges the punishment imposed was held as being not too harsh although the money misappropriated was given back by the charged employee. 8. In the instant case and as appearing from the materials on record the Bank had lost its trust upon the appellant. There is evidence to show that amounts had been received from customers on various dates but not accounted for. The action of the appellant leaves no room for doubt regarding his complicity and involvement in the incident. 9. The test of proportionality cannot be adjudged in a straitjacket formula. The acts of Bank Officers require a stricter scrutiny, inasmuch as, in a case involving loss of reputation of the Bank in the eyes of the public it is immaterial as to whether the Bank has suffered any financial loss or not. The primary consideration would be the conduct of the employee working in the Bank which actually matters. The findings of the Enquiry Officer which have been accepted by the Disciplinary Authority and upheld by the Appellate Authority disclose that the appellant had acted in violation of the established norms and procedures of the Bank. The charges levelled are undoubtedly very serious in nature. 10. In the backdrop of the charges, the findings and the punishment imposed are now called upon to be tested vis-a-vis the doctrine of proportionality. The parameters of judicial review in the matter of interference with the quantum of punishment are apparently limited. Interference can only be made on ground that the award of punishment appears to be strikingly disproportionate to the extent of shocking the conscience of the Court. The parameters of judicial review in the matter of interference with the quantum of punishment are apparently limited. Interference can only be made on ground that the award of punishment appears to be strikingly disproportionate to the extent of shocking the conscience of the Court. Every Officer employed in an organisation, particularly in a Bank, is expected to act within the limits of his authority, inasmuch as, any transgression of the limits of the authority would usher a chaotic, in disciplined and unmanageable situation in the Office. A misadventure by way of acting beyond authority is not permitted to the employees of the Banks which deal with public funds. Such action amounts to a breach of discipline and a breach of the established norms and procedures of the Bank. 11. The authoritative pronouncements of the Apex Court on the doctrine of proportionality shows that generally the choice as regards to the quantum of punishment is within the jurisdiction and discretion of the disciplinary authority. An exception is carved out only in a case where the quantum of punishment ex facie appears to be so disproportionate to the offence charged that it shocks the conscience of the Court. In the instant case the respondent authorities had rightly exercised its choice having regard to the nature of misconduct of the appellant. The punishment of dismissal from service has been correctly applied to the fact situation of the case and we find no error in interfering with the order of dismissal from service and the judgment and order of the learned Single Judge. The punishment so imposed in the given facts do not come within the realm of being strikingly disproportionate to the extent of shocking the conscience of the Court. 12. In view of the above, we find no merit in this writ appeal and the same is accordingly dismissed. The parties are left to bear their own costs.