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2019 DIGILAW 92 (MEG)

Hrishikesh Bhattacharjee v. Indian Bank

2019-03-28

H.S.THANGKHIEW, MOHAMMAD YAQOOB MIR

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JUDGMENT : Mohammad Yaqoob Mir, J. 1. By medium of this writ appeal, judgment dated 03.03.2014 passed in WP (C) No.346 of 2009, is assailed. 2. Appellant admittedly Clerk/Shroff in respondent-Bank was assigned the Tiny Deposit Section from 01.09.2004 to 28.02.2005. During the said period, appellant is allegedly to have worked as sub-Agent of respondent No.5 which is in absence of consent of the bank was impermissible. He is alleged to have committed certain irregularities as a result whereof, has misappropriated an amount of Rs.2,88,150/- (Rupees two lakhs eighty eight thousand and one hundred fifty) as he had not deposited the same with the Tiny Deposit Agent or with the Branch. 3. Appellant was served with a notice by the respondent (Bank) dated 01.06.2005 wherein, as many as 13 irregularities committed by him were made mention of, was asked to tender an explanation which he vide his letter dated 16.07.2005, has responded wherein he has denied to have committed any irregularities. Not satisfied with the response, a show cause notice dated 26.04.2006 was served upon him (appellant) as to why disciplinary action should not be taken. His response to the said show cause notice dated 06.06.2006 gave rise to a regular inquiry; Articles of Charge vide letter dated 25.11.2006 were served upon him. 4. Shri Tapan Kumar Chakrabarty, Manager Circle Officer was appointed as Inquiry Officer, who after threadbare enquiry which appellant had actively participated, prepared a detailed report dated 31.10.2007 with the following conclusion:- "Thus in respect of Charge Sheet No.COG/VIG/S-11/299/06- 07 dated 25.11.2006 issued to Shri Hrishikesh Bhattacharjee, as per my opinion derived on the basis of documents/evidences/witnesses produced during the enquiry, Charge No.1, 2, 4 and 6 are proved in full, Charge No.5 is partially proved and Charge No.3 is not proved." 5. Copy of the Inquiry Officers report was sent to the appellant on 11.12.2007 along with disagreement of the Disciplinary Authority regarding finding of Inquiry Officer in respect of Charge No.3. Sufficient time was given to the appellant for offering his comments which within time he did not. Subsequently, vide letter dated 27.01.2008, he had submitted his comments. Copy of the Inquiry Officers report was sent to the appellant on 11.12.2007 along with disagreement of the Disciplinary Authority regarding finding of Inquiry Officer in respect of Charge No.3. Sufficient time was given to the appellant for offering his comments which within time he did not. Subsequently, vide letter dated 27.01.2008, he had submitted his comments. Disciplinary Authority after threadbare discussion, after proper examination of the inquiry record and enquiry report imposed on the appellant punishment of "compulsory retirement with superannuation benefits i.e. pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment" in terms of Regulation 6(c) of Memorandum of Settlement dated 10.04.2002 between the Banks and Workmen Association. The period from 11.07.2005 till 31.03.2008 has been treated as one on suspension only. 6. Aggrieved by the order of the Disciplinary Authority, appellant had filed an appeal before the Appellate Authority (Deputy General Manager) which too vide order dated 22.05.2009 had been dismissed being without merit. 7. Aggrieved by the disciplinary proceedings and orders passed thereon, appellant filed WP (C) No.346 of 2009 but dismissed vide judgment dated 03.03.2014 being devoid of merit. Aggrieved whereof, instant writ appeal has been filed. 8. Show cause notice, articles of charge, enquiry report and order passed by the Disciplinary Authority have been threadbare referred to and discussed in the judgment impugned, therefore, are not required to be reproduced in this judgment. 9. First contention of learned counsel for the appellant is that there was no positive evidence so as to prove that the appellant had acted as sub-Agent under the TDS Agent (respondent No.5). Even the Inquiry Officer himself had observed that there is no direct evidence to prove that the appellant had worked as sub-Agent, even the signature of the appellant in the Tiny Deposit collection register and Tiny Deposit record was not found. Even the Inquiry Officer himself had observed that there is no direct evidence to prove that the appellant had worked as sub-Agent, even the signature of the appellant in the Tiny Deposit collection register and Tiny Deposit record was not found. This contention on scrutiny is found to be without substance for the reasons to follow:- (a) Learned Single Judge in the judgment at para 15 has quoted three grounds based on which, appellant had challenged the Enquiry Report dated 31.10.2007, order of the Disciplinary Authority dated 31.03.2008 and order of Appellate Authority (Deputy General Manager) dated 22.05.2009 same read as under:- "(i) the finding of the Enquiry Report dated 31.10.2007 is not correct inasmuch as both the oral and documentary evidence of the prosecution are not properly appreciated; (ii) the copies of the documents (mentioned above) asked for are not furnished to the writ petitioner and; (iii) the penalty imposed to the writ petitioner is severe and disproportionate to the charges leveled against the writ petitioner." (b) Learned Single Judge regarding evidence based on which Inquiry Officer had prepared his report has opined that under Article 226, High Court cannot interfere with the findings recorded in the Departmental Enquiry or by Disciplinary Authority as a matter of course, neither the Court can sit in appeal over those findings. The power of judicial review takes in its stride the domestic enquiry as well. The High Court can interfere with the conclusion if there was no evidence to support the findings or the findings recorded were such as not reached by any prudent man or findings were perverse. In support whereof placed reliance on paras 8 and 9 of the judgment rendered in the case of Kuldeep Singh v. The Commissioner of Police reported in AIR 1999 SC 677 , also placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of General Manager (P) Punjab & Sind Bank & ors v. Daya Singh reported in (2010) 11 SCC 233 and has also placed reliance on the judgment reported in (2006) 7 SCC 212 . (c) After referring to the law as laid down by the Honble Apex Court, learned Single Judge has found that the two grounds as referred to above are not tenable. (c) After referring to the law as laid down by the Honble Apex Court, learned Single Judge has found that the two grounds as referred to above are not tenable. (d) Learned Single Judge while considering the third ground i.e. disproportionate punishment has relied on the judgment of the Honble Apex Court in the case of Canara Bank v. V.K. Awasthy: (2005) 6 SCC 321 . Paras 21, 22, and 23 have been quoted and then has concluded that there is no reasons to interfere with the quantum of punishment imposed to the writ petitioner. 10. Learned counsel for the appellant tried to project the case in a manner as if learned Single Judge in the writ proceedings had to meticulously sift, scan the evidence and to appreciate in the manner so as to draw the conclusion different to what had been drawn by the Inquiry Officer and Disciplinary Authority. 11. It is trite that Court can interfere into the findings of Inquiry Officer as well as punishment imposed by Disciplinary Authority only when there is perversity or findings have been recorded in absence of any evidence. Standard of proof as applicable to criminal proceedings is not to be applied in disciplinary proceedings. 12. Appellant was working as Clerk in the Bank he was required to be more vigilant. He appears to have fallen prey to greed and appears to have acted as sub-Agent which was impermissible and in the process misappropriation took place that too regarding Tiny Deposit. 13. We have bestowed our thoughtful consideration to all submissions of learned counsel for the appellant and have meticulously perused the proceedings conducted by the Inquiry Officer and also the proceedings of Disciplinary Authority in our considered view, both the Inquiry Officer as well as Disciplinary Authority, with all sense of responsibility have dealt with the matter consistent with the cannons of justice. 14. The appellant has been given ample opportunity, he has not been at any point of time deprived of setting up his defence. Tricks cannot work when it is clear that an act has been committed by a responsible Clerk, irresponsibly with bad design and bad intent. Misappropriated amount has been refunded i.e. why Disciplinary Authority has taken lenient view in awarding punishment. Punishment awarded as referred to above is not only consistent with the irregular act committed by the appellant but also rationale and appropriate. Misappropriated amount has been refunded i.e. why Disciplinary Authority has taken lenient view in awarding punishment. Punishment awarded as referred to above is not only consistent with the irregular act committed by the appellant but also rationale and appropriate. We could not find any infirmity or illegality in the disciplinary proceedings which position has been correctly appreciated by the learned Single Judge. 15. Judgment impugned is in detail and well reasoned. Findings are fully supported by the law as laid down by Honble Apex Court as referred to in the judgment, we could not find any illegality or infirmity in the judgment impugned thus no interference is warranted, judgment as such is upheld. 16. Appeal is accordingly dismissed. 17. No order as to costs.