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2017 DIGILAW 927 (ORI)

Surjya Kumar Dash v. UCO Bank

2017-08-23

SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ petition has been filed by the petitioner challenging the order of punishment dated 1.7.1999 under Annexure-16 and the confirming appellate order dated 20.11.1999 under Annexure-18 passed by the disciplinary authority whereby and where under the order of removal from service has been passed against the petitioner. 2. The order dated 20.11.1999 under Annexure-18 is the order passed by the appellate authority confirming the order passed by the disciplinary authority under Annexure-16. The ground of challenge of both these orders by the petitioner is that the petitioner has been alleged with the allegation of causing pecuniary gain of Rs.8,400/- and fail to discharge his duty with honesty, integrity, devotion and diligence as per the Regulation 3.1 of United Commercial Bank Officer’s (Conduct) Regulations, 1976. 3. According to the petitioner whatever irregularity has been committed by him that does not pertains to gross misconduct rather it is due to the misconception and the mental problem from which he was facing at that time. He submits that he is the person who has brought to the notice of the authority regarding withdrawal of the amount of Rs.8400/- which has subsequently been deposited by him and as such it cannot be said that there is any intention to defraud the Bank for his own personal gain. He submits that the disciplinary authority without taking into consideration the gravity of the allegation and of 29 years of unblemished service career which he has rendered in the Bank in different capacity in different Branches has imposed major punishment of removal from service. He further submits that in the nature of serious allegation with respect to other employees, wherein lesser punishment has been imposed in comparison with the punishment of the petitioner. He submits that the disciplinary authority without appreciating this aspect of the matter has inflicted major punishment vide order dated 1.7.1999. He further submits that he has preferred an appeal before the appellate authority but the appellate authority in routine manner has rejected the appeal without appreciating the plea taken by him in the memo of appeal regarding gravity of the offence, quantum of punishment and parity in the manner of imposing punishment and also the unblemished service rendered by him for the period of 29 years and as such the order passed by the appellate authority being non-speaking is not sustainable in the eye of law. 4. 4. Learned counsel for the petitioner has relied upon the judgment with respect to duty of the appellate authority and if the order is non-speaking, it cannot be said to be a justified order, the judgment relied upon by the petitioner is delivered by the Hon’ble Rajasthan High Court of its Jodhpur Bench in S.B. Civil Writ Petition No. 614 of 1980 and the judgment pronounced by the Hon’ble Supreme Court in the case of Ram Chander vrs. Union of India and others reported in 1986 (2) SLR. He further relies upon the judgment of this Court regarding quantum of punishment by referring in this regard in the case of Bhaskar Chandra Mohapatra vrs. The Disciplinary Authority, UCO Bank and another passed W.P.(C) No. 5092 of 2010 on 14.07.2015. 5. Learned counsel for the opposite party-Bank has vehemently opposed the arguments advanced on behalf of the petitioner and has submitted that the Bank has committed no illegality in passing the order of removal from service. He submits that the disciplinary authority after providing ample opportunity of being heard to the petitioner has passed the order of punishment and taking into consideration serious nature of allegation which touches the integrity and honesty of the petitioner and as such the same needs no interference by this Court. So far as the quantum of punishment is concerned, it has been argued by him that considering the nature of allegation, this Court may not interfere with the quantum even. 6. He further submits that regarding illegality and propriety of the order passed by the appellate authority that there is no infirmity in the same, rather the appellate authority examined the entire matter available on record and thereafter affirmed the order of the disciplinary authority by taking into consideration the nature of allegation. This Court has heard the learned counsel for the parties and perused the documents available on record. 7. The fact which is not in dispute in this case is that an allegation has been leveled against the petitioner that on 24.04.1993 he wrongly prepared a debit voucher of Rs.8400/- to P.O.B. A/c. (Branch Office-Katapalli) at Sambalpur Branch and utilized the same as part amount for purchase of four demand drafts on Calcutta and Bhubaneswar totaling to Rs. 10,000/-. The fact which is not in dispute in this case is that an allegation has been leveled against the petitioner that on 24.04.1993 he wrongly prepared a debit voucher of Rs.8400/- to P.O.B. A/c. (Branch Office-Katapalli) at Sambalpur Branch and utilized the same as part amount for purchase of four demand drafts on Calcutta and Bhubaneswar totaling to Rs. 10,000/-. Subsequently, the petitioner himself prepared, signed and reversed the POB entry in the POB register originally made by him on 24.04.93 by preparing another debit voucher for Rs.8,400/- on the account of “Interest paid-Interest on FDR” on 13.09.1993. The FDR No.155/91-92 for Rs.60,000/- at Katapalli Branch was closed on 16.08.1994 and the proceeds of FDR 155/91-92 i.e. Rs.60,000/-+ Interest of Rs.30,666/- was withdrawn by him by withdrawl slip from his Savings Bank Account No.4147 at Katappli Branch. By the above fraudulent act he derived pecuniary gain of Rs.8,400/- and further charge that he applied for a Demand Draft on Bhubaneswar Main Branch for Rs.7000/- in favour of Central Bank of India A/c. Godrej Soaps Call Money. Without following the correct procedure, he on 6.11.1993 obtained a sum of Rs.7000/- back in cancellation of draft for Rs.7,000/- purchased by him on 27.10.1993 and purchased three drafts on Calcutta totaling to Rs.5000/- when his S.B. A/c.17274 showed a balance of Rs.240.48 only. To offset the wrong debit of Rs.7000/- on 6.11.1993, he transferred from SB A/c.17274 on 9.2.1994 a sum of Rs. 7000/- and adjusted the POB entry. The draft of Rs.7000/- purchased on 27.10.1993 was actually honoured by Bhubaneswar Main Office on 1.11.1993 in clearing. By the above act, he derived a temporary pecuniary gain of Rs.7,000/-. 8. The enquiry has been directed to be conducted, the enquiry officer has found the charge proved, the disciplinary authority, after acceptance of the enquiry report, has issued second show cause notice and thereafter final order of punishment has been passed on 1.07.1999 wherein the order of removal has been inflicted upon him. The petitioner has filed an appeal provided under the Regulation before the appellate authority but the same has been rejected vide order dated 20.11.1999. 9. The petitioner is before this Court challenging the order dated 1.7.1999 and 20.11.1999. The petitioner has filed an appeal provided under the Regulation before the appellate authority but the same has been rejected vide order dated 20.11.1999. 9. The petitioner is before this Court challenging the order dated 1.7.1999 and 20.11.1999. The ground of challenge by the petitioner are two folds, i.e. the allegation is not so serious warranting the major punishment of removal from service and the order of the appellate authority is illegal having no reason assigned therein. 10. This Court has perused the material available on record, the order of the disciplinary authority and also the appellate authority. The order of the appellate authority cannot said to be justified one since the same is not with the reason for confirming the order of the disciplinary authority. 11. It is settled proposition that failure to give reasons amount to denial of justice, reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of MMRDA Officers Associatioin Kedarnath Rao Ghorpade vrs. Mumbai Metropolitan Regional Development Authority and Another reported in (2005) 2 SCC 235 , wherein the Lordships has been pleased to hold at paragraph-5, which is being reproduced herein below for ready reference; “5. Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.” Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The “inscrutable face of the sphinx” is ordinarily incongruous with the judicial or quasi-judicial performance. It is evident from the ratio laid down in the case referred above that reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The “inscrutable face of the sphinx” is ordinarily incongruous with the judicial or quasi-judicial performance. It is evident from the ratio laid down in the case referred above that reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. Further reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of D.F.O., Kothagudem and others vrs. Madhusudan Rao reported in (2008) 3 SCC 469 wherein at para-20 it has been laid down that an appellate authority or the revisional authority is not required to give detailed reason for agreeing or confirming the order passed by lower forum but in the interest of justice the delinquent officer is entitled to know at least the mind of the appellate/revisional authority in dismissing his appeal and/or revision. It is true that no detail reasons are required to be given but some brief reason is required even in an order affirming the order of the lower court. The fact of the case in hand is that the appeal has been filed by the petitioner which is provided under the Regulation and as such the appeal cannot be said to be mere formality. 12. Learned counsel for the petitioner has produced the Regulation wherein the appellate authority has been assigned with the duty to pass an order of appeal after considering the material put before it. The word ‘consider’ is of great significance. Meaning of consideration has been dealt with in the case of Chairman, LIC of India vrs. A. Masilamani reported in (2013) 6 SCC 530 at para-11 which is being referred herein below:- “11. The word “consider”, is of great significance. Its dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order.” In the light of this, this Court has examined the argument of the rival parties in the light of the proposition as has been settled by the Hon’ble Supreme Court referred herein above. 13. The petitioner, who has been inflicted with the major punishment, has raised the vital point regarding quantum of punishment, disparity in the decision of the authority in inflicting the punishment specifically referring in the memo of appeal regarding the instances that under the serious nature of allegation, the lesser punishment has been imposed. For ready reference the instance which has been referred by the petitioner is being reproduced herein below:- “The disciplinary authority has not taken an uniform view in many disciplinary cases. I am citing few examples. In one of the cases it was proved in the enquiry that the sanction order of the sanctioning authority in an advance account was altered and fraudulently a higher limit was fixed by the CSO. In another case the same CSO had taken a guarantee of a person who was dead which was proved in the enquiry. The account became NPA and the bank lost of substantial amount. The punishment awarded was stoppage of 5 increments (Ref. S.K. Sahu). In another case 5 decimal of land was taken in mortgage but actually shown to the Bank as 50 decimal, heavy overdrafts were allowed by the CSO, financing a non-existent borrower were proved in enquiry. Creation of fraudulent mortgage is also proved in the enquiry and total loss to the bank is 30 lacs but the punishment was reduction of 3 increments for one year only 6 (Ref. P.P. Mohanty). In another case a matter was investigated by CBI. It was proved that 20 non-existent borrowers were financed. The handwriting experts had given his opinion that the document for 20 borrowers were signed by one and the same person. The facts were proved in the enquiry. Punishment awarded by the same disciplinary authority is reduction to initial stage for 3 years. It was proved that 20 non-existent borrowers were financed. The handwriting experts had given his opinion that the document for 20 borrowers were signed by one and the same person. The facts were proved in the enquiry. Punishment awarded by the same disciplinary authority is reduction to initial stage for 3 years. But in my case, I have been chosen for removal from service for an irregularity of Rs.8,400/-. The punishment is disproportionate to the irregularity.” The petitioner has also raised an objection regarding 29 years of unblemished service career to assail the order of punishment on the ground of quantum of punishment. The appellate authority in a very routine manner has affirmed the order passed by the disciplinary authority by saying it in the order dated 20.11.1999 that he has meticulously examined all record and documents and more particularly the appellant’s submission recorded in his appeal and thereafter confirmed the order passed by the disciplinary authority but doing so he has not assigned any reason while affirming the order of disciplinary authority with respect to quantum of punishment by not following the principle of parity considering the nature of allegation and the unblemished service career of 29 years. 14. There cannot be any dispute in the settled proposition that the disciplinary authority is supposed to inflict the punishment on the basis of gravity of charge. It is also not in dispute that there cannot be any discrimination in inflicting punishment upon one or the other employees. 15. 14. There cannot be any dispute in the settled proposition that the disciplinary authority is supposed to inflict the punishment on the basis of gravity of charge. It is also not in dispute that there cannot be any discrimination in inflicting punishment upon one or the other employees. 15. This Court has gathered from the arguments advanced on behalf of the petitioner also having been reflected in the memo of appeal that the employees working under the opposite party-Bank who has committed serious nature of irregularities in the matter of sanction of loan i.e., S.K. Sahu and P.P. Mohanty against one of them the allegation is that he has sanctioned the loan by showing the value of the collateral security more than the actual value and the same has subsequently found to be incorrect and thereby the Bank money has been put to jeopardize causing great financial loss to the Bank, even in such type of allegation only the increment has been directed to withhold with cumulative effect, as such in the nature of allegation in hand which according to the Bank is the pecuniary loss to the Bank in the nature of temporary loss but even then major punishment of removal from service has been imposed as such this aspect is also to be dealt with by the appellate authority by passing speaking order by referring that what led the authorities to impose major punishment of removal from service, while against those persons against whom the nature of allegation was serious they have been punished with the lesser quantum of punishment. 16. This Court is passing this order in the peculiar facts and circumstances since it has been brought to the notice of this Court that the Bank is adopting pick and chose policy which prima facie seems to be correct and as such this needs to be dealt with by the appellate authority by passing well speaking order in this regard. 17. This Court after taking into consideration the settled proposition for consideration and reply of the considered view that the order passed by the appellate authority is not sustainable in the eye of law, accordingly, the same is quashed. 18. 17. This Court after taking into consideration the settled proposition for consideration and reply of the considered view that the order passed by the appellate authority is not sustainable in the eye of law, accordingly, the same is quashed. 18. In the result, the matter is remitted before the appellate authority for passing fresh order in the light of the fact that the petitioner has rendered his service for 29 years, the instance given by the petitioner in the memo of appeal regarding inflicting lesser quantum of punishment in comparison to the petitioner when the charges against them are serious in nature, within a reasonable period preferably within a period of eight weeks from the date of receipt of copy of this order. With this observation and direction, this writ petition is disposed of.