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2017 DIGILAW 1412 (GAU)

Debajit Saikia v. United Bank of India

2017-11-07

AJIT SINGH, MANOJIT BHUYAN

body2017
ORDER : 1. The appellant/writ petitioner while serving as Cashier-cum-General Clerk at United Bank of India, Tirap Branch, was proceeded against departmentally on charges of misappropriation and for causing financial loss to the Bank and was eventually dismissed from service on 19.5.2006. The same was also affirmed by the Appellate Authority vide order dated 20.10.2006. The related writ petition, i.e. WP (C) 570/2007, challenging the aforesaid two orders, was dismissed vide judgment and order dated 21.7.2015. Hence, the present appeal. 2. We have heard Mr. K.N. Choudhury, learned senior counsel representing the appellant/writ petitioner, assisted by Mr. B.K. Kashyap, advocate as well as Mr. S. Dutta, learned senior counsel representing all the respondents, assisted by Mr. S. Dutta and C. Sarma, advocates. The relevant records in original have also been produced by Mr. Dutta. 3. Essential facts in a chronological sequence are that on 31.5.2003 when the appellant was discharging duties at the Tirap Branch, the Chief Regional Manager along with the Vigilance Officer of the Bank's Regional Office had visited the Branch and conducted an exercise which led to lodging of a First Information Report by the Manager of the Tirap Branch against the appellant, the same being registered as Margherita Police Station Case No. 84/2003 under section 420/409 of the Penal Code, 1860. The appellant was arrested on 31.5.2003 itself and while in custody, he was placed under suspension vide order dated 2.6.2003. Consequent upon investigation, charge sheet was filed against the appellant and case was committed to trial. On the departmental side, the appellant was served with the Notice dated 7.8.2004 listing out 13 charges against him for acts of misappropriation and for causing financial loss to the Bank. The charges related to creating fictitious credit entries in the Reinvestment Plan Accounts (‘RIP’) of named Bank's customers and creating credits in another Savings Bank Account by reconciling the day's accounts by manipulating the Books of Account. By the alleged irregular acts, it is stated that the Bank had been exposed to financial loss to the tune of Rs. 9,83,616.00 plus interest thereon. The appellant made reply to the Notice and although the appellant did not initially participate in the departmental enquiry, however, in view of order passed by this court in WP (C) No. 2791/2005, a fresh departmental proceeding was initiated with appointment of an Enquiry Officer wherein the appellant had submitted written statement of defence. 9,83,616.00 plus interest thereon. The appellant made reply to the Notice and although the appellant did not initially participate in the departmental enquiry, however, in view of order passed by this court in WP (C) No. 2791/2005, a fresh departmental proceeding was initiated with appointment of an Enquiry Officer wherein the appellant had submitted written statement of defence. The departmental proceeding concluded with the Report of the Enquiry Officer holding all the thirteen charges as proved against the appellant and also arriving at the finding that the appellant had used the Reinvestment Plan receipts to pass on undue financial benefit of Rs. 9,83,616.00 plus applicable interest thereon to three account holders and derived personal benefits of huge amounts of money. Pursuant to issuance of the second show-cause notice, the Disciplinary Authority issued order dated 19.5.2006 dismissing the appellant from service. Appeal preferred also stood dismissed by order dated 20.10.2006 of the Appellate Authority. 4. Before the writ court, the challenge to the impugned orders was made primarily on the grounds that (i) several vital documents were not furnished to the appellant, as a result of which he was denied a fair opportunity of defence, (ii) the confessional statement, which was marked as Material Ext. 25, was obtained through coercion, and, therefore, the same could not have been made one of the basis for reaching an adverse conclusion by the Enquiry Officer and (iii) the penalty so imposed was wholly disproportionate, so much so, a co-delinquent, i.e. the Branch Manager of the Bank was inflicted with a lesser penalty. Each of the challenges were discussed, considered and answered in the negative and while doing so the learned Single Judge also considered the minutes recorded by the Enquiry Officer so produced by the counsel representing the Bank. The relevant paragraphs in the judgment answering the challenges so made are reproduced for ready reference: 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. 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 and 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. 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. 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. 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. On the findings above and by holding that there was no merit in the case, the writ petition was dismissed vide judgment and order dated 21.7.2015. 5. In the present appeal, Mr. Choudhury have primarily urged two grounds to assail the order of dismissal from service, that is, the denial of procedural safeguards and that the acquittal of the appellant in the criminal case, being based on the same set of facts and evidence as in the departmental proceeding, entitled the appellant to a blotless reinstatement in service. On the aspect of procedural irregularity, it is submitted that the documents sought for during the enquiry proceedings were not made available, save and except only one document, which caused prejudice to the appellant to prove his innocence. Further, the documents at SL. No. 5 of the list of documents marked as ME-3, which was submitted on behalf of the management, was not produced, thereby denying the appellant the scope to submit proper defence. The documents at SL. No. 5, according to the appellant, pertained to the Reinvestment Plan Account Closing Register of Tirap Branch from 1996 to December 2003 and was relevant as it contained the details of the dates on which accounts were closed, the names of the account-holders, the mode of payment and amounts so paid from the years 1996 to 2003. Additionally, Mr. Choudhury, also refutes the legality and validity of the alleged Confessional Statement (ME-25) as being irrelevant, so much so, that it cannot form any basis to establish the charges against the appellant. In support of the arguments advanced, reliance is placed in the case of V.K. Sasikala vs. State Rep. by Superintendent of Police, (2012) 9 SCC 771 , Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. (1999) 3 SCC 679 , C.M. Tank vs. State of Gujarat, (2006) 5 SCC 446 and Manindra Chandra Dhar vs. Tripura Road Transport Corporation, (2002) 2 GLR 576. 6. Mr. Dutta, on the other hand, submits that the enquiry was held according to the procedure prescribed by following the principles of natural justice. 6. Mr. Dutta, on the other hand, submits that the enquiry was held according to the procedure prescribed by following the principles of natural justice. Necessary documents to the satisfaction of the appellant were duly made available and on the above counts no case is made out to suggest the least denial of procedural safeguards. Mr. Dutta, in order to buttress his arguments, refers and relies on the original records of the enquiry proceedings as produced before this court. It is also submitted that having regard to the gravity of offence, the punishment imposed on the appellant is wholly proportionate. In so far as the order of acquittal in the criminal case is concerned, Mr. Dutta vociferously argues that the end result of both the departmental and the criminal proceedings are not based on same facts and evidence. The acquittal in the criminal proceeding was not an honourable acquittal and almost all the witnesses refrained from giving evidence to the point of turning hostile. As regards the confessional statement (ME-25), Mr. Dutta submits that the answer given by the management witness-1 to Question Nos. 32 and 33 during the enquiry proceeding makes it abundantly clear of the admission made by the appellant of having fictitiously opened the Reinvestment Plan Accounts and having committed irregularities for which the appellant even stood to compensate the Bank for any loss caused. In support of his submissions above, Mr. Dutta places reliance in the case of Baljinder Pal Kaur vs. State of Punjab, (2016) 1 SCC 671 , T.N.C.S. Co. Ltd. vs. K. Meerabai, (2006) 2 SCC 255 , Union of India vs. Purushottam, (2015) 3 SCC 779 , Deputy Inspector General of Police vs. S. Samuthiram, (2013) 1 SCC 598 and Bank of India vs. T. Jogram, (2007) 7 SCC 236 . 7. We proceed to determine this case on the basis of the facts pleaded and upon perusal of the records of the enquiry proceedings, so produced by the Bank. While doing so we intend to refer to only those cases, as cited by the counsels which, in our considered opinion, are deemed relevant for determination of the issues at hand. 8. Before proceeding further, it would be necessary to bear in mind the scope and power of this court to interfere with disciplinary proceedings in exercise of its powers under article 226 of the Constitution of India. 8. Before proceeding further, it would be necessary to bear in mind the scope and power of this court to interfere with disciplinary proceedings in exercise of its powers under article 226 of the Constitution of India. It is a well settled position that the High Court cannot act as an Appellate Authority in the disciplinary proceeding and re-appreciate the evidence before the Enquiry Officer. In the case of Union of India vs. P. Gunasekaran, (2015) 2 SCC 610 , the Supreme Court laid down the parameters that are available to a High Court to venture into the legality and validity of a disciplinary proceeding. The High Court can only see whether the enquiry has been held by a competent authority and in terms of the procedure prescribed in that behalf by following the principles of natural justice. It is to be seen whether the authorities have disabled themselves from reaching a fair conclusion or have allowed themselves to be influenced by irrelevant or extraneous considerations and whether the conclusion in the enquiry proceedings, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion. Also, whether the disciplinary authority had erroneously failed to admit admissible and material evidence or have erroneously admitted inadmissible evidence which influenced the finding. Finally, whether the finding of fact is based on no evidence. In the same breath, the Supreme Court have held that it is not permissible for the High Court to re-appreciate the evidence and/or to interfere with the conclusion arrived at in the enquiry if the same has been conducted in accordance with law. It is not for the High Court to go into the adequacy and reliability of evidence and correct error of facts, however, grave it may appear to be. Lastly, it is not for the High Court to go into the proportionality of punishment unless it shocks its judicial conscence. 9. On the question of non-furnishing of required documents as asked for by the appellant during the enquiry proceedings, case laid out is that on the asking of the Enquiry Officer the appellant submitted a list of 14 documents on 21.2.2006 which, according to him, would be necessary and expedient for making effective defence. 9. On the question of non-furnishing of required documents as asked for by the appellant during the enquiry proceedings, case laid out is that on the asking of the Enquiry Officer the appellant submitted a list of 14 documents on 21.2.2006 which, according to him, would be necessary and expedient for making effective defence. The appellant was informed that the said documents could not be traced out in the Tirap Branch, save and except, only one document and to that effect a letter has also been issued by the Bank Authority on 24.2.2006. Submission advanced is that the documents so asked for were important and vital, without which the Enquiry Officer could not be in a position to record any findings adverse to the appellant's interest. It is also the case of the appellant that on the very first day of the enquiry, i.e., 20.2.2006, the Presenting Officer had submitted a list of documents marked as ME-3, which were to be relied upon. At SL. No. 5 of the said list, there was mention of the Reinvestment Plan Account Closing Register of Tirap Branch covering the period from 1996 to December, 2003. According to the appellant, this document was also vital as it contains the details of the dates on which accounts were closed, the names of the account-holders, mode of payment and amounts so paid for the period from 1996 to 2003. According to the appellant, the Management neither produced the document nor provided any opportunity to the appellant to examine or cross-examine any witness in respect of the documents at SL. No. 5, thereby denying the appellant the opportunity to properly defend his case. 10. The non-furnishing of the documents as asked for by the appellant and/or non-production of the documents at SL. No. 5 of ME-3 as introduced by the management would, at first blush, appear to be a grave procedural irregularity. Therefore, to get to the root of the matter, we have perused the relevant records which go to show that during the enquiry proceedings on 24.2.2006, the Presenting Officer had placed the documents as sought for by the appellant. On record, the Presiding Officer stated that out of the fourteen documents given in the list submitted by the appellant, the Debit and Credit Vouchers relating to SL. Nos. On record, the Presiding Officer stated that out of the fourteen documents given in the list submitted by the appellant, the Debit and Credit Vouchers relating to SL. Nos. 2 to 12 of the list was already placed in the enquiry through Exhibit ME-22/1 to ME-22/12, ME-23/1 to ME-23/15 and ME-14/1 to ME-14/13. The records also show that the appellant had acknowledged of having received those documents. It is also recorded that the RIP Certificates as asked for, under SL. Nos. 2 to 12 of the list, the Credit Voucher of Rs. 10,000 dated 9.5.1997 of S/B Account No. 2798 and Office Order Register from 9.5.1997 to 29.4.2000 were not available at the Tirap Branch, for which a certificate was also issued by the Manager of Tirap Branch on 24.2.2006. The Certificate issued by the Manager was part of evidence and marked as Ext. No. 2, copy of which was also handed over to the appellant. There is nothing on record to show that consequent upon what was recorded in the enquiry proceedings of 24.2.2006 and after the furnishing of a copy of the aforesaid Certificate, the appellant had persisted and pursued with the matter demanding furnishing of such documents which remained untraced. The matter with regard to the list of fourteen documents, as demanded, came to rest on 24.2.2006 itself. As regards the allegation that the management did not produce the document at SL. No. 5 of the list of documents marked as ME-3, the original records speaks otherwise. The enquiry proceedings of 24.2.2006 clearly records that the copies of all the original documents placed before the enquiry on 20.2.2006 and 21.2.2006 were handed over to the appellant on 20.2.2006 and 21.2.2006 itself. If the document at SL. No. 5 was vital, the appellant ought to have introduced the same himself for the purpose of his defence. From the above, we are satisfied that there was no denial on the part of the respondent-authorities to furnish documents as asked for and even if certain documents could not be furnished due to reasons clearly assigned, the appellant did not show any keenness to pursue further with the matter in the enquiry proceedings. In this respect, we have also gone through the case in V.K. Sasikala (supra) as cited by Mr. Choudhury, particularly paragraph 17 thereof. In this respect, we have also gone through the case in V.K. Sasikala (supra) as cited by Mr. Choudhury, particularly paragraph 17 thereof. We find that the cited case, in the facts and circumstances thereof, is not applicable in the present case. 11. The second leg of submission on behalf of the appellant is now adverted to. Case laid out is that since the departmental proceedings and the criminal case were based on the same set of facts and evidence in both the proceedings without there being any variance and the prosecution having failed to prove the offences under section 420/409, IPC against the appellant beyond all reasonable doubt, as such, the acquittal of the appellant in the criminal case made him entitled to blotless re-instatement in service, notwithstanding the end-result of the departmental proceedings. In the case of Capt. M. Paul Anthony (supra), the issue before the Supreme Court was whether departmental proceedings and proceedings in a criminal case launched on the basis of same set of facts can be continued simultaneously. This issue was answered by holding that both proceedings can proceed simultaneously but with a little exception where both the proceedings are based on the same set of facts and evidence. In the same judgment, the Supreme Court held that when there is acquittal by a judicial pronouncement, it would be unjust, unfair and rather oppressive to allow the findings recorded in an ex parte departmental proceeding to stand. A salient note was also recorded that when facts and evidence in both the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction which is usually drawn between the two proceedings on the basis of approach and burden of proof, would not be applicable. At this stage, it would be useful to place on record that the departmental enquiry against the appellant did not proceed ex parte. In the case of G.M. Tank (supra), the Supreme Court on the facts of that case observed that there was a judicial pronouncement with the finding that the charge has not been proved against the appellant therein and since the said judicial pronouncement was made after a regular trial and on hot contest, it would be unjust, unfair to allow the findings recorded in the departmental proceedings to stand. It was further held that when there was an honourable acquittal of the employee concerned during the pendency of the proceedings challenging a dismissal order, the same requires to be taken note of and the decision in Capt. M. Paul Anthony will apply. In G.M. Tank, the court found that the charges, evidence, witnesses and circumstances in both the departmental proceedings and in the criminal case were one and the same. In the said case, the Investigating Officer and other departmental witnesses who were examined by the Enquiry Officer and upon whose evidence reached the conclusion that charges against the delinquent were established, the same witnesses were examined in the criminal case and the criminal court on examination came to the conclusion that prosecution failed to prove the guilt alleged against the delinquent beyond any reasonable doubt, thereby acquitting the delinquent by its judicial pronouncement. It was in this context the Supreme Court held that judicial pronouncement being made after a regular trial and on hot contest, it would be unjust and oppressive to allow the findings recorded in the departmental proceedings to stand. Each case being an authority for what it actually decides, it would be our endeavour to ascertain whether the facts in the present case calls for a conclusion as reached in the cases of Capt. M. Paul Anthony and G.M. Tank. 12. Before answering the above issue, we may usefully refer to the law laid down by the Supreme Court in Deputy Inspector General of Police vs. S. Samuthiram, (2013) 1 SCC 598 , which contains a comprehensive discourse on all the prominent precedents with the conclusion that acquittal of any employee by a criminal court would not automatically and conclusively impact departmental proceedings. In the above cited case, the Supreme Court upon considering the facts and circumstances of the case arrived at a finding that the respondent S. Samuthiram was not honourably acquitted by the criminal court. Acquittal was only due to the fact that two witnesses turned hostile and other prosecution witnesses were not examined. Qualifying on the meaning of the expression honourable acquittal, it was held that mere acquittal does not entitle an employee to reinstatement in service. It means acquittal after full consideration of prosecution evidence. Where the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 13. Qualifying on the meaning of the expression honourable acquittal, it was held that mere acquittal does not entitle an employee to reinstatement in service. It means acquittal after full consideration of prosecution evidence. Where the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 13. An additional affidavit was filed by the appellant on 25.10.2017, enclosing therewith a copy of the judgment dated 8.7.2013 passed in GR Case No. 196/2003, State vs. Sri Debajit Saikia. In the said judgment the case against the appellant was recorded in brief. The prosecution examined 7 witnesses including the Investigating Officers. There was one court witness. In the criminal trial, the appellant declined to adduce any evidence. A perusal of the judgment dated 8.7.2013 goes to show that besides the two Investigating Officers and the court witness, the evidence of the other 5 prosecution witnesses contributed nothing to support or establish the prosecution case in any manner. Their depositions were to the extent of turning hostile. Each of the said five witnesses had deposed that they know nothing about the incident involving the appellant. The court witness Sri Badan Hazarika, who deposed in his capacity as the Branch Manager of the Bank, Tirap Branch, stated that the Branch Manager who had lodged the First Information Report in the year 2003 had expired. He deposed that he joined as Branch Manager at Tirap Branch on 29.1.2011 and never had the occasion to meet late Haripada Bachan, the then Branch Manager and he could recognise the signature of late Haripada Bachan by looking at the pad and seal of the Bank. The depositions of the Investigating Officers are to the extent of having recorded the statements of witnesses, conducting investigation and submitting charge sheet. The judgment of 8.7.2013 also clearly records that except for the court witness, none of the prosecution witnesses knows anything about the incident. In these premises, the court concluded that the prosecution failed to prove the offence under section 420/409, IPC against the appellant beyond all reasonable doubt, thereby acquitting him of the said charges and setting him at liberty. 14. In these premises, the court concluded that the prosecution failed to prove the offence under section 420/409, IPC against the appellant beyond all reasonable doubt, thereby acquitting him of the said charges and setting him at liberty. 14. A mere perusal of the judicial pronouncement in GR Case No. 196/2003 and having regard to the quality of evidence adduced by the prosecution witnesses lending no support to the prosecution case, the acquittal of the appellant by the criminal court was not unexpected. In our considered opinion, the judicial pronouncement in GR Case No. 196/2003 was not on hot contest, rather a product of inadequate testimony of the five prosecution witnesses, to the extent of turning hostile. We are unable to hold that the appellant was honourably acquitted by the criminal court after full consideration of prosecution evidence. The benefit of re-instatement in service on acquittal by the criminal court cannot be extended and made applicable to the appellant in the particular facts and circumstances of the case. The facts in Capt. M. Paul Anthony (supra) and G.M. Tank (supra) being clearly distinct and different, the decisions in the said cases cannot come to the aid of the appellant in the present scenario. The acquittal of the appellant by the criminal court cannot be held to impact the departmental proceedings and/or the decision taken by the disciplinary authority. 15. On perusal of the records and having regard to the gravity of the charges, that too by a Bank employee, as well as the procedure undertaken in the conduct of the enquiry by following the principles of natural justice, we do not find that the punishment imposed on the appellant is disproportionate to the extent of shocking our judicial conscience. Having found the two primary challenges as being wholly inadequate and without force to lay a strong foundation for making interference with the order of dismissal and that of the findings and decision of the learned Single Judge, we do not find it expedient to go into the other question on the legality or otherwise of the confessional statement (ME-25). Suffice to say that the records so produced do not reveal that the confessional statement was questioned by the appellant in the enquiry proceedings. 16. In view of the findings and decision above, we find no merit in the present appeal. Suffice to say that the records so produced do not reveal that the confessional statement was questioned by the appellant in the enquiry proceedings. 16. In view of the findings and decision above, we find no merit in the present appeal. Accordingly, the same stands dismissed, however, without any order as to cost.