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2018 DIGILAW 1154 (GAU)

Swapna Kalita v. Assam Gramin Vikash Bank

2018-08-06

LANUSUNGKUM JAMIR

body2018
JUDGMENT : LANUSUNGKUM JAMIR, J. 1. By this writ petition, the petitioner is challenging the order dated 24.12.2012, after a Disciplinary Proceeding by which she was removed from service, which shall not be a disqualification for future employment. The petitioner further prays for reinstatement back into service by treating the period from 24.12.2012 till the date of her reinstatement, as "on duty" and to pay the back wages from the said period. 2. Heard Mr. J. Roy, learned counsel for the petitioner as well as Mr. S. Dutta, learned Senior Counsel assisted by Mr. R. Hazarika, learned counsel for the respondents. 3. Mr. J. Roy, learned counsel for the petitioner submits that the petitioner was initially appointed to the post of Office Assistant (multi-purpose) at Hatisung, Assam Gramin Vikas Bank Branch in the district of Nagaon on 01.06.1990. After rendering service in different branches of the Assam Gramin Vikas Bank ("AGVB" in short), the petitioner was transferred to the Morigaon, AGVB Branch under the same capacity. The petitioner was served with letter dated 23.03.2011 issued by the respondent No. 4 directing her to submit explanation on the ground that the petitioner has defrauded an amount of Rs. 1 Lakh from 21.02.2011 to 17.03.2011. Pursuant to the letter dated 23.11.2011, the petitioner made her reply by letter dated 25.03.2011 denying the allegation levelled against her. Consequently, a Staff Meeting was held on 18.03.2011 for a discussion on the alleged misappropriated amount by the petitioner. Thereafter, the Chairman and Disciplinary Authority issued a Communication dated 25.03.2011 placing the petitioner under suspension in contemplation of a Disciplinary Proceeding against the petitioner. Further, by a letter dated 07.07.2011, the petitioner was asked to show cause as to why a Disciplinary Proceeding should not be initiated against her for misappropriating an amount of Rs. 1 Lakh for the period from 21.02.2011 to 17.03.2011. Accordingly, the petitioner denied the charges levelled against her by her reply dated 29.07.2011. 4. Learned counsel for the petitioner submits that the Chairman and Disciplinary Authority issued another letter dated 13.10.2011 by which the Article of charges were served upon the petitioner, whereby it was alleged that the petitioner misappropriated an amount of Rs. 1 Lakh for the period from 21.02.2011 to 17.03.2011, which tarnished the goodwill and the image of the Bank in the eye of the public. 1 Lakh for the period from 21.02.2011 to 17.03.2011, which tarnished the goodwill and the image of the Bank in the eye of the public. The petitioner was also asked to submit written statement against the allegation levelled against her. Accordingly, the petitioner submitted her written statement on 31.10.2011 denying the allegations that were levelled against her. Thereafter, by a letter dated 24.11.2011, the respondents decided to hold a Departmental Enquiry against the petitioner and therefore, appointed an Enquiry Officer to enquire into the charges levelled against the petitioner as well as a Presenting Officer to present the Bank's case in the Departmental Enquiry. Thereafter, the Departmental Enquiry proceeded and the petitioner participated in the said Departmental proceeding which concluded on 16.05.2012. It is also submitted that the petitioner, by a letter dated 16.5.2012 requested the Enquiry Officer to allow the customer along with his representative to be her witness in the Enquiry which was however, rejected by the Enquiry Officer. Thereafter, the Enquiry Officer submitted the Enquiry Report holding that the charges levelled against the petitioner was proved. The Chairman and Disciplinary Authority supplied the copy of the Enquiry Report to the petitioner requesting her to submit her written statement against the findings of the Enquiry Officer. The petitioner submitted her written statement on 07.08.2012 against the finding of the Enquiry Officer by denying all allegations put forward by the Enquiry Officer by further stating that none of the Management Witnesses (MWs) was able to prove the signature of the petitioner in the counter foil dated 21.02.2011 and also the refusal by the Enquiry Officer for summoning vital witness as requested by the petitioner. Thereafter, by a letter dated 30.11.2012, the Chairman and Disciplinary Authority proposed to impose the punishment of removal from service, which shall not be a disqualification for future employment. The petitioner was also asked either to appear personally or to submit written representation with regard to the proposed punishment. Accordingly, the petitioner responded by appearing before the Chairman and Disciplinary Authority against the proposed punishment denying the allegation of misappropriation of the amount of Rs. 1 Lakh. However, the Chairman and Disciplinary Authority issued a Communication dated 24.12.2012 imposing the punishment of removal from service, which shall not be a disqualification for future employment. 5. Accordingly, the petitioner responded by appearing before the Chairman and Disciplinary Authority against the proposed punishment denying the allegation of misappropriation of the amount of Rs. 1 Lakh. However, the Chairman and Disciplinary Authority issued a Communication dated 24.12.2012 imposing the punishment of removal from service, which shall not be a disqualification for future employment. 5. Learned counsel for the petitioner submits that against the Order of removal dated 24.12.2012, the petitioner preferred an appeal dated 04.02.2013 before the Appellate Authority, however, the Appellate Authority, without considering the merit of the appeal rejected the appeal made by the petitioner by a Communication dated 04.03.2013 in a very mechanical manner by upholding the decision of the Disciplinary Authority. 6. Mr. J. Roy, learned counsel for the petitioner submits that on 21.02.2011, while the petitioner was performing her duties as Office Assistant in the Token Counter to issue token to the customers of the Bank and in the process, one customer of the branch, namely, Shri Sudish Kumar Gupta, having Savings Bank Account No. 11938 came to the branch for opening a Reinvestment Plan (RIP, in short) Account for Rs. 1 Lakh and the said amount was deposited in his Savings Bank Account. Thereafter, the said customer had handed over the entire necessary documents to his representative, Shri Md. Fakaruddin to withdraw the amount from the Savings Account as he had to attend to his mother's illness at Bihar. Accordingly, the said Shri Md. Fakaruddin, withdrew the amount from the Cash Counter after producing token No. 129. On the request of the said Shri Md. Fakaruddin, a Deposit Pay In Slip was written by the petitioner and handed over to the said Shri Md. Fakaruddin for depositing the alleged amount in the RIP Account. However, due to want of signature of the said Shri Sudish Kumar Gupta, in the RIP Account form, the RIP Account could not be opened and the amount was left with Shri Md. Fakaruddin. He further submits that though the petitioner had written the Deposit Slip, the petitioner could not have taken the alleged amount inasmuch as the petitioner was in the token counter and not in the cash counter. 7. Learned counsel for the petitioner submits that on 17.03.2011, the said customer came to the bank for getting a loan of Rs. 90,000/- only against the RIP counter foil dated 21.02.2011. 7. Learned counsel for the petitioner submits that on 17.03.2011, the said customer came to the bank for getting a loan of Rs. 90,000/- only against the RIP counter foil dated 21.02.2011. However, as he was unable to get the RIP Certificate, upon which the customer was informed that his representative could not deposit the said money for want of signature of the customer. Therefore, on 18.03.2011, the customer, along with Shri Md. Fakaruddin came to the branch with the request to the petitioner in helping them to deposit the amount of Rs. 1 Lakh in the Cash Counter. Accordingly, the petitioner had handed over the amount to the Cashier after producing the RIP deposit slip and subsequently, the RIP Certificate was issued to the customer. It is further stated that by a letter dated 26.4.2011, the customer had intimated the Branch Manager of AGVB, Morigaon that the amount has been handed over to the petitioner for deposit in the cash counter. The customer had further intimated that the said amount was received back from Shri Md. Fakaruddin. Further, the representative, namely, Shri Md. Fakaruddin, by letter dated 26.4.2011 intimated the Branch Manager, AGVB, Morigaon that the said amount was in his possession since 21.2.2011 as he could not deposit the same on 21.2.2011, inasmuch as the customer did not provide his signature in the concerned Bank's document. Learned counsel therefore, submits that the letter dated 26.04.2011 would clearly indicate that no amount as alleged by the respondents has been misappropriated by the petitioner for the period 21.2.2011 to 17.3.2011. 8. Learned counsel for the petitioner submits that by letter dated 16.05.2012, the petitioner had requested before the Enquiry Officer to allow 2 (two) of her witnesses, namely, Shri Sudish Kumar Gupta (customer) and Shri Md. Fakaruddin before the Enquiry, however, the same was rejected on the ground that the witnesses were outsider witnesses. It is also submitted that the 2 (two) vital witnesses of the petitioner, namely Shri Sudish Kumar Gupta (customer) and Shri Md. Fakaruddin would have completely changed the complexion of the Disciplinary Proceeding if the Enquiry Officer had permitted them to appear and depose before the Disciplinary proceeding. However, the refusal by the Enquiry Officer to allow the 2 (two) witnesses to participate in the departmental proceeding has vitiated the whole process and the petitioner has been deprived to place her defence in a proper perspective. However, the refusal by the Enquiry Officer to allow the 2 (two) witnesses to participate in the departmental proceeding has vitiated the whole process and the petitioner has been deprived to place her defence in a proper perspective. Further submission has been forwarded that the entire Disciplinary Proceeding was not conducted in a transparent manner, inasmuch as the Enquiry Officer had failed to examine one Mr. Dilip Kumar Bhuyan (ME 17). Further, the Enquiry Officer had also failed to examine vital witnesses who had put their signature in the backside of the RIP Deposit Slip dated 18.03.2011 and also the Staff Meeting dated 18.03.2011, except the Management Witnesses. Thereafter, the Enquiry Officer, without proper appreciation of the matter came to a finding that the petitioner had deposited the alleged amount in terms of the Management Exhibit No. 13 and 17. It is also submitted that at no point of time, none of the Management Witnesses had stated before the Enquiry Officer that the initial signature upon the counter foil, dated 21.02.2011 and RIP Deposit Slip, dated 18.03.2011 was that of the petitioner. This being the lacuna in the manner in which the Enquiry Officer had proceeded with the proceedings of the Departmental Enquiry, learned counsel submits that the whole Enquiry Report stands vitiated and therefore, the same is liable to be set aside and quashed. 9. Learned counsel for the petitioner also submits that the Articles of charges framed against the petitioner was done with malafide intention to harass the petitioner. Further, the Disciplinary Authority had also failed to appreciate the representation dated 14.12.2012 filed by the petitioner and had acted in a very mechanical manner without proper application of mind while passing the Order dated 24.12.2012. He also submits that the Appellate Authority had failed to go into the depth of the matter while considering the Appeal letter dated 04.12.2013 made by the petitioner and it simply accepted the Order passed by the Disciplinary Authority. In that view of the matter, learned counsel for the petitioner submits that the impugned Order dated 24.12.2012 passed by the Disciplinary Authority and the Order dated 04.03.2012 passed by the Appellate Authority should be set aside and quashed and the petitioner be reinstated back into service along with all other consequential service benefits. Learned counsel for the petitioner has placed reliance in the case of : (1) Union of India & Ors. Vs. Learned counsel for the petitioner has placed reliance in the case of : (1) Union of India & Ors. Vs. Naman Singh Shekhawat reported in (2008) 4 SCC 1 , 2) Oriental bank of Commerce & Anr. Vs. R.K. Uppal reported in (2011) 8 SCC 695 , 3) Chairman, Life Insurance Corporation of India & Ors. Vs. Masilamani reported in (2013) 6 SCC 530 , 4) Divisional Forest Officer, Kothagudem & Ors. Vs. Madhusudhan Rao reported in (2008) 3 SCC 469 , 5) State of Uttaranchal & Ors. Vs. Kharak Singh reported in (2008) 8 SCC 236 , 6) The State of Bombay Vs. Nurul latif Khan reported in AIR 1966 SC 269 and 7) Allahabad Bank & Ors. Vs. Krishna Narayan Tewari reported in (2017) 2 SCC 308 . 10. Mr. S. Dutta, learned Senior Counsel appearing for the respondents, on the other hand submits that the Enquiry Report clearly establishes that the petitioner has misappropriated the amount of Rs. 1 Lakh for the period 21.02.2011 to 17.03.2011. He submits that the Bank employee deals with public money and the nature of the work of a bank employee demands utmost integrity, honesty, devotion and diligence and not to do anything which is unbecoming of a bank employee. The primary factor is the loss of confidence of the public upon the bank and not the amount of money misappropriated and therefore there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering, therefore, with the quantum of punishment It is submitted that the customer, namely, Shri Sudish Kumar Gupta deposited an amount of Rs. 1 Lakh in his Savings Bank Account No. 11938 on 21.02.2011. However, when he came to know that the Bank deposited in T.D. Account for security of his proposed loan he had tendered one withdrawal form of Rs. 1 Lakh from his Savings bank Account. The withdrawal amount of Rs. 1 Lakh was paid by the Cashier to Shri Fakaruddin on the advice of the petitioner, who in turn handed over the money to the petitioner for opening RIP account. The counter foil for the deposit of money in the RIP Account was issued to the depositor by the petitioner under her signature. The petitioner's endeavour that she did not retain the money could not be established by adducing any evidence. The counter foil for the deposit of money in the RIP Account was issued to the depositor by the petitioner under her signature. The petitioner's endeavour that she did not retain the money could not be established by adducing any evidence. From the evidence of MW-1, it is well established that the cash deposit slip of RIP Account for Rs. 1 Lakh in the name of the customer on 18.03.2011 was under the signature of the petitioner. Further, MW-3, on seeing the signature in ME - 3 identified the signature to be that of the petitioner. It is also submitted that in the proceedings that the Enquiry Officer had asked whether both the sides would like to produce any witness/evidence/documents to the said Enquiry proceeding. However, both the sides have replied that they have been given equal opportunities presenting their case and there has been no denial or violation of natural justice. As such, the proceedings was signed by the Enquiry Officer, Presenting Officer as well as the petitioner. Therefore, the petitioner, at this stage, cannot take the plea that she was not given proper opportunity to adduce evidence and that there has been violation of natural justice. 11. Learned senior counsel appearing for the respondents submits that the findings of an Enquiry officer cannot be nullified, so long as there is some relevant evidence in support of the conclusions recorded by the Enquiry Officer. It is submitted that in the present case, all necessary relevant documents were produced in the enquiry to establish the charge levelled against the petitioner, and the allegations were found to have been proved on the basis of oral evidence and documentary evidence. Therefore, the evidence recorded by the Enquiry Officer cannot be said to be based on no evidence and in such circumstances, the petitioner cannot take the ground of there being no proper evidence or not allowed to be led. The proceedings of the Departmental Enquiry would clearly indicate that there were sufficient evidence to prove that the signature in the counter foil was that of the petitioner. As the signature of the petitioner was proved, there is no scope for this Court to interfere into the punishment that has been imposed upon the petitioner and therefore, the present writ petition deserves to be dismissed. Learned counsel for the respondent has placed reliance in the case of: 1) Divisional Controller, NEKRTC Vs. As the signature of the petitioner was proved, there is no scope for this Court to interfere into the punishment that has been imposed upon the petitioner and therefore, the present writ petition deserves to be dismissed. Learned counsel for the respondent has placed reliance in the case of: 1) Divisional Controller, NEKRTC Vs. H. Amaresh reported in (2006) 6 SCC 187 , 2) Ram Saran Vs. IG of Police, CRPF & Ors. reported in (2006) 2 SCC 541 , 3) Avinash Sadashiv Bhosale (dead) through L.R.S. Vs. Union of India & Ors. reported in (2012) 13 SCC 142 , 4) State Bank of India & Ors. Vs. S.N. Goyal reported in (2008) 8 SCC 92 , and 5) State of U.P. & Ors. Vs. Nand Kishore Shukla & Anr. reported in (1996) 3 SCC 750 . 12. I have heard the submissions forwarded by the learned counsel appearing for the parties. 13. By Order dated 25.03.2011, the petitioner was placed under suspension in contemplation of a Disciplinary Proceeding. Thereafter, the Articles of charge was served upon the petitioner by Communication dated 13.10.2011 alleging misappropriation of an amount of Rs. 1 Lakh for the period from 21.2.2011 to 17.3.2011. The petitioner was given show cause notice and the petitioner replied to the show cause. Thereafter, the Departmental Proceeding started. 14. The proceedings of the Departmental Proceeding has been annexed to the writ petition as Annexure 15. This Court has considered the entire proceedings of the said Departmental Enquiry. The Oral evidence of both the management as well as the defence has also been considered by this Court. A consideration of the same would indicate that the signature of the petitioner in cash deposit slip of the RIP for Rs. 1 Lakh has been identified. This has been done by MW - 1 as well as MW - 3. Further, at the end of the Departmental Enquiry, opportunity was given to both the management and the petitioner to produce any further witness/evidence/documents to the Enquiry. However, it is seen that both the management as well as the petitioner stated that they have been given equal opportunities in the Enquiry and presenting the case and there has been no denial or violation of natural justice. Accordingly, the proceedings were concluded and the signature of the Enquiry Officer, Presenting Officer, the petitioner and the DR were recorded in the proceedings. Accordingly, the proceedings were concluded and the signature of the Enquiry Officer, Presenting Officer, the petitioner and the DR were recorded in the proceedings. On conclusion of the Enquiry, the Enquiry Officer submitted the Enquiry Report wherein it was established that the RIP deposit slip/counter foil dated 21.02.2011 has been prepared and written by the petitioner and issued by the petitioner to Shri Sudish Kumar Gupta/customer against withdrawal of Rs. 1 Lakh. It was further established that the petitioner deposited Rs. 1 Lakh on 18.03.2011 against the counter foil of the said Shri Sudish Kumar Gupta for RIP receipt dated 21.02.2011 and therefore, the charge levelled against the petitioner was proved. On a consideration of the Enquiry Report, the Disciplinary Authority notified the petitioner with regard to the proposed punishment on 30.11.2012 and further opportunity was also given to make a written representation against the proposed punishment. Thereafter, the impugned Order dated 24.12.2012 was issued by the Chairman and Disciplinary Authority imposing the punishment and removal from service, which shall not be a disqualification for future employment 15. On a consideration of the Enquiry proceedings as well as the Enquiry Report, this Court is of the considered opinion that the findings recorded by the Enquiry Officer cannot be said to be based on no evidence, particularly, when the signature of the petitioner was identified by MW - 1 and MW - 3. Therefore, I am of the view that the findings of the Enquiry Officer cannot be nullified inasmuch as there are relevant findings in support of the conclusions recorded by the Enquiry Officer. All relevant documents were produced in the Enquiry to establish the charge levelled against the petitioner. At no point of time, the petitioner had raised any objections with regard to the authenticity of the documents that were produced by the Bank/Management. 16. A Bank employee is expected to exercise high standards of honesty and integrity inasmuch as they deal with the money of the depositors and customers. They are, therefore, expected to take all possible steps to protect the interest of the Bank and to discharge their duties with utmost integrity, honesty, devotion and diligence. In the present case, this Court has noticed that the petitioner has not acted in the manner that is expected of a bank employee. In the case of State Bank of India and Ors. Vs. In the present case, this Court has noticed that the petitioner has not acted in the manner that is expected of a bank employee. In the case of State Bank of India and Ors. Vs. S.N. Goyal (Supra), the Hon'ble Supreme Court has held that any misappropriation, even temporary of the funds of the Bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment 17. It is also a settled position of law that the loss of confidence is the primary factor and not the amount of money misappropriated and in such cases there is no place for generosity or misplaced sympathy on the part of the judicial forums. 18. In the case of Divisional Controller (NEKRTC) Vs. A.D. Mani (Supra), the Hon'ble Supreme Court has held as under: "7. It is settled law that the court is not a court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a government servant based upon the proved misconduct against the government servant. Its proportionality also cannot be gone into by the court. The only question is whether the disciplinary authority would have passed such an order. It is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the court would be loath to interfere with that part of the order. The order of removal does not cast stigma on the respondent to disable him from seeking any appointment elsewhere. Under these circumstances, we think that the High Court was wholly wrong in setting aside the order." 19. In the facts and circumstances of the case, as discussed herein above, this Court does not find any scope to interfere with the impugned Order dated 24.12.2012 and accordingly, this writ petition is dismissed. 20. No cost.