JUDGMENT AND ORDER : Heard Mr. J. Chutiya, the learned counsel for the petitioner. The Central Bank of India (hereinafter referred to as the “Bank”) and their officers are represented by the learned Sr. counsel Mr. N.C. Das. 2. The challenge here is to the order dated 05.04.2007 (page-27), whereby in pursuant to a Disciplinary Proceeding (D.P.), the petitioner was inflicted with the penalty of removal from service. He also challenges the order passed by the Appellate Authority on 01.08.2007 (Annexure-6), whereby the appeal was dismissed and the disciplinary action was upheld by the bank’s Appellate Authority. 3. Initially 2 charges were levelled against the petitioner. But under the modified charge-sheet of 05.12.2005, the following 3 charges were under consideration against the petitioner, in the DP: “Charge No.1: On 09-02-2005, Sri Utpal Bordoloi, while he was working in cash receipt counter, accepted cash from M/S Marcofed LPG Service for depositing in their CC A/C No.76 maintained with Kohima branch. As per deposit pay-in-slip, the details of denomination of cash deposited by them were as follows: 98 X 500 49,000.00 280 X 100 28,000.00 144 X 50 7,200.00 30 X 1000 30,000.00 TOTAL Rs.1,14,200.00 In the column of total of deposit pay-in-slip and counter foil the amount was, by mistake written as Rs.1,04,200.00 in stead of Rs.1,14,200.00 by the customer. As a result, Sri Bordoloi had received excess cash of Rs.10,000.00 (Rupees Ten thousand only). Sri Bordoloi did not return excess cash of Rs.10,000/- to the depositor. He did not deposit the excess cash of Rs.10,000.00 in the bank also despite Bank’s Memo No.BR/KOH/2004-05/196 dated 15-02-05. Thus he misappropriated the bank’s/customer’s money which constitute gross misconduct as laid down under clause 5(j) of Memorandum of Settlement dated 10th April 2002 on Disciplinary Action procedure for workmen. Charge No.2: On 03-10-2005, Sri Utpal Bordoloi, while he was working in cash receipt counter, received total Rs.21,01,539/- (Rupees Twenty one lakh one thousand five hundred thirty nine only) from various customers. Charge No.2: On 03-10-2005, Sri Utpal Bordoloi, while he was working in cash receipt counter, received total Rs.21,01,539/- (Rupees Twenty one lakh one thousand five hundred thirty nine only) from various customers. But, at the close of business of the day, he handed over total Rs.20,96,551/- (Rupees Twenty lakh ninety six thousand five hundred fifty one only) making the shortage of an amount of Rs.4,988/- (Rupees Four thousand nine hundred eighty eight only) and in order to tally the cash balance on 3/10/05, Sri Bordoloi was allowed to tender one withdrawal slip for late payment of Rs.5000/- in his SB A/C No.5765 on his oral request to the Manager, with an assurance to deposit the said amount in his SB A/C No.5765 on the next day 4.10.05 since the a/c was having a credit balance of Rs.2.10 P, only. On 4.10.05, Sri Bordoloi failed to deposit the said amount of actual shortage amount of cash for Rs.4988/- in his SB A/C 5765 as per his oral assurance to the Manager given on 3/10/05. Sri Bordoloi did not return the shortage amount of Cash Rs.4,988/-. Thus he misappropriated the bank’s money which constitute gross misconduct as laid down under clause 5(j) of Memorandum of Settlement dated 10th April 2002 on Disciplinary Action procedure for workmen. In this respect, he did not replied to the bank’s Memos No.BR/KMA/Staff/05 dated 05-10-2005 by the Manager of Kohima branch despite bank’s reminder letter BR/KMA/Staff/05 dated 27.10.05. Charge No.3: Sri Bordoloi is in the habit of remaining unauthorised absent from his duty without having leave in his credit. A few occasions were as follows: (a) From 27-06-04 to 06-07-04 (b) From 27-12-04 to 24-01-05 He had also remained unauthorised absence for 21 days in January, 05, 4 days in Feb’ 05, 4 days in Mar’ 05, 24 days in April 05, 9 days in May 05, 25 days in June 05, 12 days in July 05, 11 days in Sept’ 05 and continues to remain absent from 2nd November, 2005 till date (05.12.2005) as informed by the branch vide their letter dated 05/12/05. Such act on his part constitutes gross misconduct as laid down under clause 5(p) of Memorandum of Settlement dated 10th April 2002 on Disciplinary Action procedure for workmen.” 4. Such act on his part constitutes gross misconduct as laid down under clause 5(p) of Memorandum of Settlement dated 10th April 2002 on Disciplinary Action procedure for workmen.” 4. A Senior Manager of the Bank was asked to enquire into the charges and under his report of 29.08.2006 (Annexure-2), all 3 charges were found to be proved against the delinquent. 5. After due consideration of the enquiry findings, the disciplinary authority on 05.04.2007 inflicted the penalty of removal from bank’s service under, para 6(b) of the Memorandum of Settlement on Disciplinary Action Procedure for Workmen dated 10.04.2002. When the resultant appeal of the delinquent was rejected by the Appellate Authority on 01.08.2007, the delinquent amended his writ petition and has also challenged the decision of the Appellate Authority. 6.1 The learned counsel Mr. J. Chutiya submits that it is not a case of manipulation of the bank records to misappropriate the bank’s/customer’s money and therefore the proportionality of the punishment is questioned by the learned counsel. 6.2. Referring to the Charge No.1, which alleges failure of the bank’s clerk to refund to Rs.10,000/- to the customer, who mistakenly entered a lesser sum in the pay-in-slip, the counsel submits that such omission may warrant disciplinary action, but in the context of the customer’s mistake, the punishment is disproportionate to the misconduct. 6.3. On the Charge No.2 on the shortfall of Rs.4,988/-, while the day’s receipt was deposited by the bank’s clerk, the learned counsel submits that the petitioner may have made a bonafide mistake since he handed over Rs.20,96,551/- while the receipt ledger shows the bank’s receipt for the day at Rs.21,01,539/- but this minor discrepancy could have been adjusted by the bank from the petitioner’s salary, without substantially penalizing the clerk. 6.4. In so far as the 3rd charge of unauthorised absence, the petitioner contends that absenteeism in the context of the Nagaland situation should have been appreciated by the employer and the harsh punishment of removal could have been avoided since such penalisation impacts not only the delinquent but also his dependant family members. 7.1. On the other hand, Mr. N.C. Das, the learned Sr. counsel projects that following the amended charge memo dated 05.12.2005, a disciplinary enquiry was conducted and findings were given by the Enquiry Officer on the basis of relevant materials. Therefore the Sr. 7.1. On the other hand, Mr. N.C. Das, the learned Sr. counsel projects that following the amended charge memo dated 05.12.2005, a disciplinary enquiry was conducted and findings were given by the Enquiry Officer on the basis of relevant materials. Therefore the Sr. counsel argues that the delinquent had fair opportunity to defend the charges and disciplinary action was taken through due process. 7.2. On the proportionality of punishment, Mr. Das submits that bank employees are required to serve the institution with higher standards of honesty and on account of the fiduciary relationship between the bank and its customers, there can be no lenient punishment for an errant employee. 8. What is seen here is that the delinquent was afforded full opportunity to participate in the enquiry and charges are seen to have been proved on the basis of the contemporaneous bank record. Therefore, it must be declared that the enquiry was fair and reasonable. 9. Next, when we consider the proportionality of punishment, unless it shocks the conscience of the Court, interference with the decision of the disciplinary authority may not be justified. While good conduct and higher standards of honesty is expected from a bank employee, no deliberate act or manipulation was attributed to the employee, for the loss of Rs.10,000/- and Rs.4,988/- respectively. The customer made the mistake in entering the amount in the pay-in-slip and that is how, excess cash of Rs.10,000/-, was received by the bank clerk. Likewise, the shortfall of Rs.4,988/- in the daily receipt is also not attributed to any manipulation but could be a bonafide mistake. The resultant cash shortfall against Charge Nos.1 and 2 to the tune of Rs.14,988/- could have been make good by the delinquent or the bank could have easily recovered the sum from the bank clerk’s salary. Moreover no criminality is alleged in the Charge No.1 and Charge No.2, against the delinquent. These in my understanding are mitigating factors for the choice of penalty. 10. As regards the 3rd charge on absenteeism is concerned, the disciplinary authority should have also considered the local scenario in Nagaland, while deciding the punishment. Was it only the petitioner who remained absent from duty or other employees of the branch were also of similar habit. The prevalent scenario at Kohima at Nagaland during the relevant period should have been weighed. Was it only the petitioner who remained absent from duty or other employees of the branch were also of similar habit. The prevalent scenario at Kohima at Nagaland during the relevant period should have been weighed. It cannot also be ignored that unauthorised absence pertains to the month of June 2004 and at the proximate time, the bank did not initiate any disciplinary action against the errant clerk. Moreover the rampant absenteeism during the Christmas season in Nagaland in December – January could have been factored into account, while deciding the penalty by the disciplinary authority. 11. Considering the fact that the bank’s employee is not alleged to have manipulated the pay-in-slip or vouchers and the customer’s mistake in entering the lesser amount in pay-in-slip is acknowledged, a more lenient penalty could have been imposed by the disciplinary authority, against the Charge No.1. Similarly the shortfall of Rs.4,988/- in depositing the day’s cash receipt, cannot amount to a major misconduct, to warrant the penalty of removal from service. The charge absenteeism should have also been considered in the context of the local scenario in Nagaland and perhaps a lenient view could then have been taken. In such circumstances, the retention in service with lesser punishment, would have better served the cause of justice. Hence the punishment of removal is declared to be harsh as it shocks the conscience of the Court. 12. Therefore while upholding the disciplinary action against the petitioner, I remand the matter back to the bank’s disciplinary authority for imposition of a lesser punishment than that of removal from service. In other words, the punishment should not result in discontinuation of service. It is ordered accordingly. 13. With the above order, the case stands allowed in the manner indicated. No cost.