Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 277 (GAU)

Chenu Boro v. State Bank of India

2018-02-13

HRISHIKESH ROY

body2018
JUDGMENT : 1. Heard Mr. P. Kataki, the learned counsel appearing for the petitioner. The respondent-State Bank of India (SBI) and their officers are represented by Mr. S.S. Sharma, the learned senior counsel. 2. Initially this case was filed by Arabinda Boro (the delinquent), who as a Senior Assistant of the SBI, faced disciplinary proceeding and was dismissed from service on 19.6.2008 (Annexure X). When the delinquent died on 20.11.2011, the litigant's wife was allowed to be substituted on 16.9.2014, through the Misc. Case No. 2704/2013. 3. The charge memo dated 6.6.2007 (Annexure VII) was issued to the delinquent with the following three charges: (i) You had withdrawn a total amount of Rs. 2,32,000 from the Savings Bank Account No. 01190006802, pertaining to Smt. Jamuna Boro, maintained at our Dadara Branch on different dates during the period from 8.6.2006 to 23.11.2006 fraudulently and had misappropriated the amount. (ii) While you had withdrawn an amount of Rs. 2,00,000 from the above account on 8.6.2006 by making four entries of Rs. 50,000 each in the system without any withdrawal slip (debit voucher), you had made the following transactions in the account by preparing vouchers (withdrawal slips) as well as deposit vouchers and putting through the same in the system and embezzled another amount of Rs. 32,000 without the knowledge of the account holder: Date of transaction Debits (Rs.) Credits (Rs.) 9.8.2006 10,000 --- 17.8.2006 5,000 --- 6.9.2006 --- 15,000 6.9.2006 20,000 --- 14.9.2006 5,000 --- 18.9.2006 2,000 --- 9.10.2006 2,000 --- 11.10.2006 --- 22,000 11.10.2006 25,000 --- 7.11.2006 --- 25,000 7.11.2006 --- 5,000 7.11.2006 30,000 --- 23.11.2006 --- 30,000 23.11.2006 30,000 --- (iii) You had withdrawn an amount of Rs. 30,000 fraudulently from the SB Account No. 01190006802 of Smt. Jamuna Boro, maintained at the Branch on 7.11.2006. While updating the passbook Shri Madhav Boro, son of Smt. Jamuna Boro, on 23.11.2005 had noticed the above debit entry and brought it to your notice, you had immediately prepared a credit voucher of Rs. 30,000 and entered it in the system and got the passbook updated and showed it to Shri Boro stating that the amount was erroneously debited to the above account which you had rectified. But after his departure, you had again debited the account with Rs. 30,000 by preparing a fictitious withdrawal slip. Thus, you had misused the power delegated to you by the Bank as Single Window Operator. 4. But after his departure, you had again debited the account with Rs. 30,000 by preparing a fictitious withdrawal slip. Thus, you had misused the power delegated to you by the Bank as Single Window Operator. 4. In his response, the delinquent simply denied the charges and requested for exoneration and revocation of the suspension order. Prompted by the unsatisfactory reply, one Deva Brata Das was appointed as the Inquiry Officer on 20.8.2007. He conducted the proceedings examined the documents and also the witnesses adduced before him. Four witnesses were presented from the prosecution side and the delinquent produced one defence witness. 5. After assessment of the evidence, the Inquiry Officer concluded that all the three charges were proved, under his finding recorded on 21.4.2008. The disciplinary authority then considered the enquiry report and the circumstances in the case and ordered for dismissal of the delinquent on 19.6.2008 (Annexure X). Although an appeal was filed, the same was rejected on 28.11.2008 (Annexure XIV), by the Appellate Authority. 6.1 Challenging the discliplinary action, the learned counsel Mr. P. Kataki points out that the money withdrawn from the Bank Account of the complainant Jamuna Boro, was returned by the delinquent and accordingly, he submits that no loss was caused to either the complainant or the Bank. On this basis, the plea for lesser punishment, is made by the petitioner's lawyer. 6.2 Referring to the refund of the sum in the complainant's account, within few months, Mr. Kataki submits that such case of temporary misappropriation deserves lenient treatment and it is, thus, argued that the harsh punishment of dismissal is not warranted, in such cases. 6.3 As the complainant herself withdrew the complaint after refund of the money by the delinquent, the petitioner's lawyer submits that exoneration of the delinquent should be considered as he was forgiven even by the complainant. 7.1 On the other hand, the learned senior counsel Mr. S.S. Sharma points out that the delinquent as the Senior Assistant at the Dadara Branch of the SBI had misappropriated money through illegal manipulation of the SB Account No. 01190006802, of an illiterate widow Jamuna Boro and such embezzlement of money by a Bank employee can hardly be treated leniently. He also points out that the misappropriated sum was credited in the customer's account only after she made the complaint on 21.12.2006. He also points out that the misappropriated sum was credited in the customer's account only after she made the complaint on 21.12.2006. 7.2 The learned senior counsel submits that the Bank's employees are occupying position of trust and, therefore, they are expected to display greater degree of integrity in dealing with the customers' accounts. Referring to the serious charge of embezzlement from the Bank account, through a series of transactions, without the knowledge of the customer, Mr. Sharma argues that the punishment of dismissal was the deserved penalty for the serious misconduct. 7.3 The response of the delinquent before the Inquiry Officer, against the question Nos. 12 and 13 are read by the Bank's lawyer to point out that the delinquent admitted that he withdrew Rs. 2,32,000, on different dates from the Bank Account of the complainant Jamuna Boro and this amount was misappropriated to purchase land. Eventually when the complaint was filed by the account holder on 21.12.2006, the misappropriated sum was refunded in two installments on 23.12.2006 and 24.12.2006, after sale of that very asset purchased with the misappropriated sum. On this basis, the Bank's lawyer argues that this is not a case for interference of the writ court. 8. When a disciplinary proceeding is drawn up against an employee, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ court is not expected to act as an appellate authority to judge the merit of the conclusion reached by the Enquiry Officer. Interference would be justified only when there is procedural error leading to manifest injustice. But in the present case, as earlier noted, the delinquent was afforded a fair opportunity to defend the charges and the conclusion of the Enquiry Officer is based on documentary evidence. 9. What is of significance here is that the petitioner does not challenge the fairness of the enquiry proceeding or the conclusion drawn by the Inquiry Officer. But he seeks exoneration by projecting that the money misappropriated from the Bank account of the complainant, was credited in her account and there was no loss either to the customer or to the Bank. 10. The delinquent was a Senior Assistant posted in a Rural Branch of the SBI and it is implicit that that Bank employee holds fiduciary position where honesty and integrity are inbuilt requirement. 10. The delinquent was a Senior Assistant posted in a Rural Branch of the SBI and it is implicit that that Bank employee holds fiduciary position where honesty and integrity are inbuilt requirement. The Supreme Court in the Regional Manager, U.P. SRTC vs. Hoti Lal, (2003) 3 SCC 605 , has held, thus, that: “If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust-worthiness is must and unexceptionable.” 11. If we proceed on the above basis, the lenient treatment sought for the delinquent can hardly be justified for the Bank employee, who had embezzled money from the customer's account, to acquire immovable assets. 12. Insofar as the refund of the misappropriated money by the delinquent, it is important to note that the sum was credited in the customer's account only after she registered the complaint. Therefore, the absence of loss for the Bank's customer or the Bank itself in my perception, will have no bearing on the disciplinary action, against the delinquent. 13. The misappropriation of the customer's money by a Bank employee is a serious misconduct, as was held by the Supreme Court in Suresh Pathrella vs. Oriental Bank of Commerce, (2006) 10 SCC 572 . Therefore, I see no scope to order for a lenient punishment, for the delinquent in the present matter. 14. In consequence of the above discussion, the challenge to the disciplinary action is found devoid of merit and accordingly the writ petition stands dismissed. The parties to bear their own cost.