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2018 DIGILAW 664 (GAU)

Jatin Das v. United Bank of India

2018-04-19

HRISHIKESH ROY

body2018
JUDGMENT AND ORDER : 1. Heard Mr. D.P. Chaliha, the learned Senior Counsel appearing for the petitioner. Also heard Mr. S. Dutta, the learned Senior Counsel appearing for the United Bank of India (hereinafter referred to as the Bank) and their officers (respondents). 2. The matter pertains to a Disciplinary Proceeding, against the petitioner who at the relevant period (14.9.2004—5.5.2007), served as the Dy. Manager in the Doomdooma Branch of the Bank. On the allegation of misappropriation against the Dy. Manager, the FIR was filed on 26.4.2008 by the Bank, leading to registration of the Doomdooma P.S. Case No. 153/2008, under Section 409 of the IPC. The substance of the allegation in the Criminal Case, inter alia, is that the Dy. Manager had prepared fraudulent Debit Vouchers and gave credit to his own Savings Bank and the Over Draft accounts. Additionally, fraudulent preparation of demand draft was also mentioned in the FIR, filed against the petitioner. 3. On the very same allegations, the Bank authorities decided to hold an enquiry under Regulation 6 of the United Bank of India Officer Employees (Discipline & Appeal) Regulations, 1976 (hereinafter referred to as the UBI Regulations). Thus the charge memo dated 18.6.2008 (Annexure-3) was issued to the delinquent. The content of the allegations are extracted here-in-below for ready reference : "1. You were maintaining SB a/c No.7989 with Doom Dooma branch. Although you had not deposited any cheque in your account for collection, you debited remittance in Transit A/C. OCC in Transit A/c and Bank A/c on a number of occasions without any valid consideration and credited the proceeds to your SB a/c No. 7989. Subsequently, you had withdrawn the amount credited in such fraudulent manner in cash through withdrawal slips/cheques drawn in your aforesaid SB a/c. The instances of such misappropriation of banks funds were furnished in Annexure-I to the charge sheet. 2. You were maintaining OD a/c No. 330018 with Doom Dooma branch. You had credited your said OD account by adopting similar modus operandi and details of such instances of misappropriation of banks funds through your OD a/c No. 330018 were furnished in Annexure-II to the charge sheet. 3. You had debited Bank A/c of the branch on three occasions and credited the proceeds to SB a/c No. 16243 of Sri Jai Prakash Lahakar, though no cheque was deposited for collection by Sri Lahakar in his SB a/c No. 16243. 3. You had debited Bank A/c of the branch on three occasions and credited the proceeds to SB a/c No. 16243 of Sri Jai Prakash Lahakar, though no cheque was deposited for collection by Sri Lahakar in his SB a/c No. 16243. The A/c holder had subsequently withdrawn the money in cash through cheques drawn on his SB a/c. You had, therefore, extended undue financial benefit to a customer through fraudulent means. The instances of misappropriation of banks funds through SB a/c No. 16243 were furnished in Annexure-III to the charge sheet. 4. On 04/05/06, an aggregate amount of Rs.181157/- was credited to the Bank A/c by SBI against three cheques presented under LCC. But before getting these credits on 03/05/06, you debited Rs.181157/- to the Bank A/c and credited the proceeds to individual accounts of the customers. On 03/05/06, SBI had credited the Bank A/c by Rs.10,70,226/- towards payment of LCCs lodged by the branch. But on 03/05/06, you debited the Bank A/c by Rs.1116707/- instead of Rs.1070226/-. In the Miscellaneous Sub-cash book, written by you in your own handwriting, Bank A/c was debited by Rs.181157.00 & Rs.1116707.00 and without preparing any voucher, a further amount of Rs.133.00 was also debited. Thus, the debit entry in the Bank A/c was inflated by Rs.46614.00 Against this inflated debit entry of Rs.46614.00, you prepared a Demand draft challan for purchasing a Demand Draft for Rs.46481.00 plus exchange of Rs.133.00, favouring J.B. Auto Pvt. Ltd. payable at Tinsukia. You received the demand draft, even though the name of the purchaser was not mentioned in the deposit challan. Thus, you have misappropriated Rs.276340.00 through your SB a/c No.7989, Rs. 42136.00 through your OD a/c No. 330018 and Rs.46481.00 through the Draft A/c besides effecting fraudulent credits of Rs.70000.00 in SB a/c No. 16243 of Sri Jai Prakash Lahakar. As a result, the bank has suffered financial loss of Rs.435090.00 due to misappropriation of its funds by you for your personal financial gains..." 4. The departmental enquiry was held on the above charges and the delinquent participated in the enquiry proceeding. The Bank produced the Local Cheque Collection Register, the Credit Vouchers, the Debit Vouchers and other relevant documents to prove the charges. The delinquent was furnished the copies of the concerned documents and was afforded the opportunity to compare them with the original records available at the enquiry venue. The Bank produced the Local Cheque Collection Register, the Credit Vouchers, the Debit Vouchers and other relevant documents to prove the charges. The delinquent was furnished the copies of the concerned documents and was afforded the opportunity to compare them with the original records available at the enquiry venue. The enquiry officer in conclusion held on 9.1.2009 (Annexure-5) that, all the charges were proved, baring the Charge No. 3 (c). 5. The copy of the enquiry report was furnished and the delinquent in his response stated that, he suffered disadvantage in the departmental enquiry since the criminal trial was proceeding around the same time. The inadequacy of staff in the Doomdooma Branch of the Bank was projected as one of the cause for the discrepancies in the accounts. 6. The disciplinary authority in his turn noted that the charges have been established on the basis of cogent documentary evidence. As regards the non-establishment of the Charge No. 3 (c), the discrepancies in the Banks records for the cheque cleared on 22.1.2007 vis-à-vis the charge was found. Moreover for this particular charge, the Local Cheque Collection Register was not produced, in support of the allegation. With such minute examination of the material basis for the findings recorded by the enquiry officer, the concurrence was recorded with the enquiry officers conclusion. Then the gravity of misconduct was assessed and the major penalty of dismissal in terms of Regulation 4 (1) of the UBI Regulations was imposed on the delinquent, by the order dated 27.2.2009 (Annexure-7). The resultant Appeal was dismissed by the Appellate Authority on 14.5.2009 (Annexure-9) and the Review Petition filed on 29.6.2009 by the Dy. Manager was disposed of on 8.9.2009 (page-102) by the Reviewing Authority, without disturbing the disciplinary action taken against the delinquent. 7.1. Assailing the legality of the disciplinary action, Mr. D.P. Chaliha, the learned Senior Counsel projects that the delinquent who faced prosecution under Section 409 of the IPC on the same set of allegation was acquitted on 30.12.2016 in the G.R. Case No. 540/2008 and on the basis of such acquittal ordered, by the Court of the Addl. CJM, Tinsukia, the senior counsel argues that penalization of the Banks Dy. Manager in the Disciplinary Proceeding, would not be justified. 7.2. CJM, Tinsukia, the senior counsel argues that penalization of the Banks Dy. Manager in the Disciplinary Proceeding, would not be justified. 7.2. The petitioner contends that he was denied a fair opportunity to defend the charges and it is further argued that the conclusions drawn by the inquiry officer is not supported by relevant evidence. 7.3. The prejudice caused to the delinquent, who was made to simultaneously face the criminal prosecution as also the Disciplinary Proceeding, is highlighted by Mr. Chaliha, to discredit the disciplinary action. 8.1. On the other hand, Mr. S. Dutta, the learned Senior Counsel submits that the petitioner as the Dy. Manager, posted in the Doomdooma Branch of the Bank, was occupying a position of trust and was discharging fiduciary responsibilities and on this basis, the dismissal punishment for the charge of misappropriation, is projected to be justified. 8.2. The senior counsel submits that the benefit given by the Criminal Court in the G.R. Case No. 540/2008, is not a honorable acquittal but is on account of the failure of the prosecution to produce relevant materials in the manner required by the Evidence Act. It is accordingly argued that the acquittal in the criminal case will not automatically impact the disciplinary action. 8.3. The Banks lawyer refers in detail to the departmental enquiry and projects that due opportunities were afforded to the delinquent by the inquiry officer and moreover the findings on each charge, is based on relevant evidence, produced in the enquiry. 9. When the departmental proceeding and the criminal case are based on identical and similar set of facts and the charge in both proceedings are one and the same, in the event of an honorable acquittal, the delinquent can claim relief in the departmental action. But the key question here is whether the petitioner was given the benefit of doubt or it was a case of honorable acquittal, by the Criminal Court. 10. The judgment of the learned Addl. CJM, Tinsukia, in the G.R. Case No. 540/2008, reflects that the prosecution failed to produce the Vouchers prepared by the accused and withholding of those Vouchers from the Trial Court by the prosecution, persuaded the learned Judge to draw up presumption in favour of the accused, under Section 114 of the Evidence Act. 10. The judgment of the learned Addl. CJM, Tinsukia, in the G.R. Case No. 540/2008, reflects that the prosecution failed to produce the Vouchers prepared by the accused and withholding of those Vouchers from the Trial Court by the prosecution, persuaded the learned Judge to draw up presumption in favour of the accused, under Section 114 of the Evidence Act. Similarly, the failure of the prosecution to arrange for certification under Section 65 (D) (4) of the Evidence Act, for the printouts of the Banks electronic system, to prove the Material Exhibit No. 1 & 2, was the major reason for the Trial Court to ignore those material exhibits. Thus the key factor for the acquittal verdict was the failure of the prosecution to prove the case against the accused in accordance with legal requirement. 11. The responsibility for conducting the criminal trial is in the hand of the prosecuting agency and in cases of this kind, the Bank, after registering the FIR, has no role to play beyond rendering assistance to the prosecution in the Criminal Trial. The prosecution as can be seen from the verdict, failed to produce the fabricated Vouchers and they also did not arrange for certification of the Material Exhibit No.1 & 2, as is required under Section 65 (D) (4) of the Evidence Act. In fact, non-production of the fabricated Credit and Debit Vouchers prepared by the accused, led to drawl of negative presumption by the Trial Court, under Section 114 of the Evidence Act. It is because of such deficient prosecution, the accused was given acquittal and this cannot be categorized to be a case of honorable acquittal. 12. The Supreme Court, in the R.P. Kapur vs. Union of India reported in AIR 1964 SC 787 , as approved in Inspector General of Police vs. S. Samuthiram, reported in (2013) 1 SCC 598 , declared that acquittal of an employee by a Criminal Court would not automatically and conclusively impact the Departmental Proceeding. The reasoning for such conclusion is analysed in Union of India vs. Purushottam, reported in (2015) 3 SCC 779 , where the Court referred to the disparate degrees of proof in the two proceedings i.e. beyond reasonable doubt in criminal prosecution contrasting with pre-ponderance of probability, in the departmental proceeding. The reasoning for such conclusion is analysed in Union of India vs. Purushottam, reported in (2015) 3 SCC 779 , where the Court referred to the disparate degrees of proof in the two proceedings i.e. beyond reasonable doubt in criminal prosecution contrasting with pre-ponderance of probability, in the departmental proceeding. The failure of the prosecution in assimilation and proper presentation of evidence, which is not in the control of the disciplinary authority was also highlighted as the reason for the Courts conclusion. That apart, the obligation of the Court to render its verdict in criminal matters on the basis of standard of proof beyond reasonable doubt, is projected as the justification for not accepting the acquittal verdict, to allow automatic exoneration of a delinquent, in a departmental proceeding. 13. Proceeding on the same line, the Supreme Court in S. Samuthiram (Supra), held that the strict burden of proof required to establish guilt in a Criminal Court, in not required in a Disciplinary Proceeding and the pre-ponderance of probability is sufficient, to draw conclusion against the delinquent. 14. With the above understanding of law, if we examine the basis for the conclusion drawn by the inquiry officer, what is discernible is that the charges have been held to be proved on the basis of documentary evidence produced in the enquiry. The Local Cheque Collection Register, the Credit Vouchers and the Debit Vouchers, which were fraudulently prepared by the delinquent, were the primary materials on the basis of which, the charges were found to have been established, by the inquiry officer. The proper application of mind to the materials available on record by the Enquiry Officer can be inferred from the fact that the Charge No.3 (c) was found to be not proved because of the mismatch of the concerned documents with the allegation in the Charge No.3 (c). 15. It is further seen that copies of all documents relied by the prosecution were furnished to the delinquent and he was also given the opportunity to inspect the original documents available at the enquiry venue. In fact, the Dy. Manager was satisfied with the genuineness of the supplied documents and therefore, he did not feel the need to compare the furnished documents with the original records. The delinquent actively participated in the enquiry and also submitted defence proof and placed his arguments before the inquiry officer. In fact, the Dy. Manager was satisfied with the genuineness of the supplied documents and therefore, he did not feel the need to compare the furnished documents with the original records. The delinquent actively participated in the enquiry and also submitted defence proof and placed his arguments before the inquiry officer. The concerned materials were matched with the charges and the conclusions in my perception, were recorded on the basis of cogent evidence. 16. In the above backdrop, no infirmity or error is seen with the disciplinary action. As earlier noted, the acquittal in the Criminal Case was primarily on account of the failure of the prosecution to discharge their responsibility in the Criminal Trial. If we now apply the principle of pre-ponderance of probability to test the finding of the inquiry officer, there is no manner of doubt that the conclusions have been drawn on the basis of cogent materials like the Local Cheque Collection Register, the Credit Vouchers and the Debit Vouchers and contrary evidence could not be brought by the delinquent for a contrary conclusion in the matter. 17. That apart, I find that the disciplinary authority had taken into consideration all the relevant materials and weighed the gravity of the misconduct and then penalized the Dy. Manager. The copy of the inquiry report was furnished to the delinquent and his response were taken into account by the disciplinary authority. The delinquent participated in the disciplinary enquiry without any reservation. Thus it cannot be said that natural justice was denied to him. 18. In view of above, the suggested interference with the disciplinary action is found to be un-merited. The writ petition being devoid of merit is accordingly dismissed. No cost.