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2020 DIGILAW 469 (CAL)

Rana Majumder v. United Bank Of India

2020-05-13

AMRITA SINHA

body2020
JUDGMENT Amrita Sinha, J. - The petitioner was serving the United Bank of India. He was sent on deputation as Chairman in the Bangiya Gramin Vikash Bank (BGVB for short) on and from 20th April 2010 to 3rd November, 2012. The petitioner was thereafter repatriated to the parent employer, i.e, United Bank of India at its head office and was posted as the Deputy General Manager (priority sector and recovery). 2. A charge sheet was issued to the petitioner on 26th March, 2014 pertaining to his tenure as Chairman of BGVB. 3. The petitioner retired from service of the bank on 31st March, 2014 on attaining his normal age of superannuation. 4. A further charge sheet was issued to him on 4th August, 2014 pertaining to his tenure as Chief Manager of Purba Medinipore region from 23rd April, 2005 to 15th October, 2008. 5. A regular disciplinary proceeding was held against the petitioner and by an order dated 7th May, 2016 the disciplinary authority passed the final order imposing major penalty of removal from service not being a disqualification for future employment, in terms of Regulation 4(i) of United Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1996, with immediate effect. It was also ordered that save and except what has been paid to him on account of his own contribution to provident fund and provisional pension he will not be entitled to any other terminal benefits, namely, pension/commutation in terms of Regulation 22 read with Regulation 46 of the United Bank of India (Employees') Pension Regulations, 1995 hereinafter referred to as 'the Pension Regulations, 1995', gratuity in terms of Regulation 46(1)(e) and encashment of accrued leave as on notional date of superannuation in terms of Regulation 38 of United Bank of India Officers' Service Regulations, 1979 hereinafter referred to as 'the Service Regulations, 1979'. 6. Statutory appeal filed by the petitioner challenging the order of the disciplinary authority stood dismissed by the appellate authority on 19th January, 2017. 7. Relying upon a circular issued by the bank on 21st July, 2015 regarding entitlement of encashment of privilege leave for officer employees inflicted with the punishment of compulsory retirement, the petitioner applied before the respondent authority for releasing his leave encashment benefit. The prayer of the petitioner stood rejected by an order dated 27th January, 2017 passed by the General Manager (HR) of the bank. The prayer of the petitioner stood rejected by an order dated 27th January, 2017 passed by the General Manager (HR) of the bank. The petitioner is aggrieved by the order passed by the disciplinary and the appellate authority and has challenged the same in the instant writ petition. 8. The petitioner prays for setting aside the order passed in the disciplinary proceeding. He also prays for a declaration that Regulation 46(1)(e) of the Service Regulations, 1979 is ultra vires the provision of Section 4 and Section 7 of the Payment of Gratuity Act, 1972 and a further declaration that Regulation 38 of the Service Regulations, 1979 is ultra vires the provision of Articles 14, 21 and 300 of the Constitution of India. The petitioner prays for releasing his gratuity, leave encashment and pensionary benefit. 9. The petitioner relies upon the following judgments in support of his case. 1) Narinder Mohan Arya -vs- United India Insurance Co. Ltd. & Ors, (2006) 4 SCC 713 (paragraphs 14, 26 and 36) on the issue that the enquiry officer cannot travel beyond the charges and the appellate authority is required to apply his mind. 2) Commissioner of Police, Delhi & Ors. -vs- Jai Bhagwan, (2011) 6 SCC 376 (paragraphs 15-18) on the issue that in the absence of a definite/clear proof supporting the case it is difficult to try a finding of taking illegal gratification from the complainant. Suspicion cannot take the place of proof. 3) United Bank of India & Ors. -vs- C. G. Ajay Babu & Ors, (2018) 9 SCC 529 (paragraphs 2, 3, 18-22) on the issue that forfeiture of gratuity is not automatic on dismissal from service. 4) Sima Dutta -vs- Central Bank of India, (2018) 1 CalLJ 659 (Cal)(paragraphs 9, 10, 25 and 37) as to when leave should be granted to the employer to proceed de novo with the disciplinary proceeding. 5) Roop Singh Negi -vs- Punjab National Bank & Ors, (2009) 2 SCC 570 (paragraphs 14, 17 and 23) on the point that a document has to be proved by the signatory/ maker of the document and suspicion howsoever high cannot be a substitute for legal proof. 6) Purnendu Shekhar Nanda -vs- State of West Bengal & Ors, (2007) 2 CalHN 690 (paragraphs 12 and 13) on the point that the enquiry stands vitiated due to non examination of the best witness. 6) Purnendu Shekhar Nanda -vs- State of West Bengal & Ors, (2007) 2 CalHN 690 (paragraphs 12 and 13) on the point that the enquiry stands vitiated due to non examination of the best witness. 7) Sur Enamel Stamping Works Pvt. Ltd. -vs- Their Workmen, (1963) AIR SC 1914 (paragraph 4) on the guidelines to be followed in a departmental proceeding. 8) Punjab National Bank -vs- Kunj Behari Misra, (1998) 7 SCC 84 (paragraphs 17, 18 and 19) on the point that opportunity to be given to the charged officer to make representation, in the event, the disciplinary authority differs with the findings of the inquiry officer. 9) Lav Nigam -vs- Chairman and Managing Director, ITI Ltd. & Anr, (2006) 9 SCC 440 on similar issue as of Kunj Behari Misra (supra). 10) Unreported judgment dated 29-09-2016 delivered by the Hon'ble Division Bench of this Court in MAT 1298 of 2012 with CAN 7976 of 2012 in the matter of UCO Bank & Ors. -vs- Nityananda Paul & Anr wherein the court held that in the absence of quantification of the loss caused to the bank due to misconduct of the employee, gratuity cannot be forfeited. 10. The respondents on the other hand submits that the petitioner acted under three capacities, i) the sanctioning officer, ii) the ratifying authority and iii) the supervisory authority. He held the position of Chairman of BGVB. The petitioner committed various acts of misconduct and accordingly two charge sheets were issued to him. The bank has suffered an estimated loss of over rupees twenty three crore due to the misdeeds of the petitioner. 11. The petitioner along with his defence representative duly participated in the enquiry proceeding and was given full opportunity to defend himself. As many as 152 management exhibits and 26 exhibits by the defence were taken into consideration by the disciplinary authority to arrive at a finding against the petitioner. The enquiry proceeded for several days. The petitioner availed the opportunity of cross-examining the management witnesses. Out of the 25 charges levelled against the petitioner only two charges were held to be not proved by the disciplinary authority and the rest of the charges were either partly proved or fully proved. 12. The petitioner was provided with the report of the inquiry officer and was again given an opportunity to submit his representation on the same. Out of the 25 charges levelled against the petitioner only two charges were held to be not proved by the disciplinary authority and the rest of the charges were either partly proved or fully proved. 12. The petitioner was provided with the report of the inquiry officer and was again given an opportunity to submit his representation on the same. The petitioner duly submitted his representation against the report of the inquiry officer. The disciplinary authority after perusal of the documents on record and the report of the inquiry officer applied its independent mind and arrived at a finding that the petitioner is liable for gross misconduct and imposed the punishment of removal from service with immediate effect. 13. The appeal preferred by the petitioner stood dismissed by the appellate authority by affirming the penalty imposed upon him. 14. The due date of retirement of the petitioner stood extended by invoking as disciplinary proceeding was pending against the petitioner at the time of his retirement. According to Regulation 48 of the Pension Regulations, 1995 the bank is entitled to recover the pecuniary loss caused to the bank from the pension of the retired employee. 15. It has been submitted that encashment of leave is a privilege conferred upon the employees of the bank and forfeiture thereof by virtue of a statutory regulation such as that of the Pension Regulation, 1995 cannot be termed as violative of the rights guaranteed under the Constitution of India. It has been contended that the provision is not discriminatory and the same is equally applicable in respect of all the employees who have been imposed the same punishment. 16. It has been argued that the petitioner acted beyond his authority which in itself is a breach of discipline, contrary to Regulation 3 of the Service Regulations, 1979. The same constitutes misconduct within the meaning of Regulation 24 of the Service Regulations, 1979. Proof of actual loss is not necessary for imposing the penalty in question. There is nothing on record to suggest that there was perversity in the disciplinary proceeding. There has not been any instance of violation of the principle of natural justice. The Writ Court does not sit in appeal over the findings of the disciplinary authority. In spite of abundant opportunities, the petitioner failed to disprove the allegations levelled against him. There is nothing on record to suggest that there was perversity in the disciplinary proceeding. There has not been any instance of violation of the principle of natural justice. The Writ Court does not sit in appeal over the findings of the disciplinary authority. In spite of abundant opportunities, the petitioner failed to disprove the allegations levelled against him. The scope of judicial review under Article 226 of the Constitution of India is extremely limited and the court ought not to disturb the penalty imposed upon the employee by his employer. 17. The respondents pray for dismissal of the writ petition. The respondents rely upon the following decisions in their support. 1) Lalit Popli -vs- Canara Bank, (2003) 3 SCC 583 on the issue that while exercising jurisdiction under Article 226 of the Constitution of India the High Court does not act as an appellate authority and cannot reappreciate evidence. 2) Disciplinary Authority cum Regional Manager & Ors. -vsNikunja Bihari Patnaik, (1996) SCC(L&S) 1194 on the issue that acting beyond authority is by itself a misconduct. 3) Sub-Divisional Officer, Konchi -vs- Maharaj Singh, (2003) 9 SCC 191 on the issue that jurisdiction under Article 226 is supervisory and the court cannot re-appreciate evidence to alter the findings of the enquiring authority. 4) Tara Chand Vyas -vs- Chairman and Disciplinary Authority & Ors, (1997) SCC(L&S) 1241 (para 2) on the issue that any conduct of an employee that damages, destroys, defeats or tends to defeat the banking service invites disciplinary action in accordance with the rules. 5) State Bank of India & Ors. -vs- T. J. Paul, (1999) 4 SCC 759 on the issue that doing any act prejudicial to the interest of the bank or gross negligence involving or likely to involve the bank in serious loss is gross misconduct. 6) Union Bank of India -vs- Bhishwa Mohan, (1998) 4 SCC 310 (paragraph 24) on the issue that in the banking business absolute devotion, diligence, integrity and honesty is to be preserved by every bank employee otherwise the confidence of the public depositors would be impaired. 7) Government of Andhra Pradesh & Ors. 6) Union Bank of India -vs- Bhishwa Mohan, (1998) 4 SCC 310 (paragraph 24) on the issue that in the banking business absolute devotion, diligence, integrity and honesty is to be preserved by every bank employee otherwise the confidence of the public depositors would be impaired. 7) Government of Andhra Pradesh & Ors. -vs- P. Chandra Mouli & Anr, (2009) 13 SCC 272 on the issue that power to punish the employee is the discretion of the employer and the courts ordinarily do not interfere unless the same is vitiated by non observance of the rules or there has been violation of the principles of natural justice. 8) Divisional Controller, KSRTC (NWKRTC) -vs- A. T. Mani, (2005) 3 SCC 254 on the issue that loss of confidence is the primary factor to decide the quantum of punishment to be imposed. 9) Chairman and Managing Director, United Commercial Bank & Ors. -vs- P. C. Kakkar, (2003) 4 SCC 364 on the issue that the scope of judicial review is limited to the deficiency in the decision making process and not the decision. 10) Syed Yakoob -vs- K. S. Radhakrishnan, (1964) AIR SC 477 on the issue that findings of facts on appreciation of evidence cannot be reopened in a writ proceeding. 11) Union Bank of India & Ors. -vs- P. Gunasekaran, (2015) 2 SCC 610 (paragraphs 12, 13, 15, 20 and 24) wherein the do's and don'ts of the court exercising judicial review under Article 226 has been laid down. 12) State Bank of Patiala & Ors. -vs- S. K. Sharma, (1996) 3 SCC 364 (paragraph 28) on the issue that principles of natural justice are to be followed in disciplinary proceedings. 18. I have heard the submissions made on behalf of both the parties. 19. The issues that fall for consideration in the instant writ petition is whether; (i) The disciplinary proceeding initiated against the petitioner was conducted in accordance with law or not? In the event the proceeding suffers from irregularities, then whether the punishment imposed upon the petitioner is liable to be interfered with or not? (ii) Regulation 46 (1)(e) of the Service Regulations, 1979 is ultra vires the provisions of sections 4 and 7 of the Payment of Gratuity Act, 1972? In the event the proceeding suffers from irregularities, then whether the punishment imposed upon the petitioner is liable to be interfered with or not? (ii) Regulation 46 (1)(e) of the Service Regulations, 1979 is ultra vires the provisions of sections 4 and 7 of the Payment of Gratuity Act, 1972? (iii) Regulation 38 of the Service Regulations, 1979 relating to lapse of leave of an officer on termination of service is ultra vires the provision of Article 14, 21 and 300A of the Constitution of India. 20. From the article of charge dated 26.03.2014 issued to the petitioner it appears that the same contained as many as 21 charges (Pg.127 of the WP). The article of charge was addressed to the petitioner describing him as Ex-Chairman of BGVB presently posted as the Deputy General Manager of the United Bank of India. The charges related to the tenure when the petitioner was serving as the Chairman of BGVB for the period 20-04-2010 to 03-11-2012. The charges primarily were with regard to loan matters. The facts and figures of the loans are clearly mentioned therein. Each of the loans were categorised as Non Performing Assets (NPA) of the bank and the aggregate outstanding balance of all the NPA accounts exposed the bank to sustain financial loss to the tune of Rs. 2,396.71 lac. 21. The petitioner attained his normal age of superannuation on 31-03-2014 but as the disciplinary proceeding initiated against him was pending, he was deemed to be in service and his retirement benefits were held up in terms of the service regulation guiding him. 22. An additional article of charge dated 04-08-2014 was issued to the petitioner containing four charges relating to loans which turned into NPA clearly mentioning that due to the lapses on his part the bank had to suffer a loss of Rs. 23,42,415/- (twenty three lac forty two thousand four hundred fifteen only) on account of sacrifice/waiver. 23. A regular disciplinary proceeding was conducted against the petitioner. The bank appointed an inquiry officer who enquired into the charges and was of the opinion that out of the total 25 charges levelled against the petitioner, 10 charges stood proved, 12 charges stood partially proved and 3 charges were not proved. The disciplinary authority was of the opinion that 12 charges were proved, 11 charges were partly proved and 2 were not proved. The disciplinary authority was of the opinion that 12 charges were proved, 11 charges were partly proved and 2 were not proved. On the basis of the charges which were proved against the petitioner, the disciplinary authority passed the final order on 07-05-2016 imposing the major penalty of removal from service, not being a disqualification for future employment. The disciplinary authority clearly mentioned that the petitioner will not be entitled to receive the terminal benefit of pension/commutation of pension, gratuity and encashment of accrued leave. It was further mentioned that it was open for the bank to recover the financial loss suffered by the bank from him in accordance with law. 24. Being aggrieved by the final order, the petitioner preferred an appeal which also went against him. The petitioner is before this Court praying for setting aside the disciplinary proceeding and the order passed therein. He also prays for releasing his terminal benefits. 25. The petitioner attacks the order of penalty by submitting that the disciplinary proceeding was not conducted in accordance with law. The disciplinary authority moulded the charges and made new allegations at the stage of issuing the penalty. The findings in the final order were in excess of the charges. The disciplinary authority did not provide any opportunity to the petitioner for putting forward his defence at the time of disagreement with the findings of the inquiry officer. The same is contrary to the principles of natural justice. 26. The petitioner urges that the forfeiture of gratuity, pension and leave encashment is bad in law. An order of removal can be passed only when an employee is in service; whereas in the instant case, the petitioner retired from service immediately after issuance of the first charge sheet. 27. The petitioner has pointed out several facts which, according to him, were not taken into proper consideration by the inquiry officer. He submits that BGVB did not have any standard loan application form. Loan was not granted in respect of the self-same pond. It is only after the loans on the first pond were liquidated, that the second loan was granted. In the absence of specific guidelines of BGVB, the petitioner followed the system followed by the nationalised banks and he ought not to be held guilty for the same. The bank relied upon circulars which were nonexistent at the time of grant of loan. In the absence of specific guidelines of BGVB, the petitioner followed the system followed by the nationalised banks and he ought not to be held guilty for the same. The bank relied upon circulars which were nonexistent at the time of grant of loan. The inquiry officer failed to consider the presanction report prepared and exhibited by the petitioner. The finding of the inquiry officer that the petitioner relied upon fake lease deeds for creating equitable mortgage is also incorrect. The petitioner contends that the enquiry report is perverse as the same is based on no evidence. The inquiry officer applied a wrong test in dealing with the allegations relating to violation of the lending norms. The inquiry officer relied upon documents especially ME-115 without the same being proved in evidence. The officers alleging coercion were not produced as witness and hence the petitioner missed the opportunity to cross examine them. The bank intentionally and deliberately withheld their witnesses and as such reliance ought not to have been placed upon document(s) not proved on evidence. The inquiry officer failed to take note of the fact that the petitioner was serving as the Chairman of the bank and was not supposed to carry out field work in the branch which ought to have been performed at the branch level. The petitioner was neither acting as a Field Officer nor a Recommending Authority. No evidence whatsoever was led by any witness regarding deviation from the banking norms. 28. The petitioner has taken a specific stand that the issuance of the second charge sheet containing the article of charge was barred by limitation in view of Regulation 48(2) of the Pension Regulations, 1995. As the petitioner retired from service on 31-03-2014, the addendum charge sheet issued on 04-08-2014 is barred by law as the allegations related to the period 23-04-2005 to 15-10-2008 when the petitioner was serving as the Chief Regional Manager, Purba Medinipore. The Pension Regulations, 1995 bars institution of departmental proceedings which took place more than four years before such institution. The bank was legally barred from initiating any proceeding after his retirement in the year 2014 alleging discrepancy during the period 2005 to 2008. 29. Per contra, it is the stand of the bank that the disciplinary proceeding was initiated against the petitioner when he was in service. The bank was legally barred from initiating any proceeding after his retirement in the year 2014 alleging discrepancy during the period 2005 to 2008. 29. Per contra, it is the stand of the bank that the disciplinary proceeding was initiated against the petitioner when he was in service. As the proceeding could not be completed prior to his superannuation, the bank invoked Regulation 20(3) of the Service Regulations, 1979 which states as follows: 30. Regulation 20(3)(iii)- the officer against whom disciplinary proceeding have been initiated will cease to be in service on the date of superannuation, but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and the final order is passed in respect thereof. The concerned officer will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for payments of retirement benefits till the proceedings are completed and final order is passed thereon, except his own contribution to CPF. 31. The bank relying upon the aforesaid provision treated the petitioner to be in service and disbursed the employee's share of CPF to him. 32. The addendum charge sheet was issued on 04-08-2014 and the same was in addition to the initial charge sheet issued to the petitioner in March 2014. 33. In the said addendum charge sheet it was specifically mentioned that the charges were in addition to the earlier charges and the latter charges should be read in continuation to the earlier letter of charge and the same should form an integral part of the said letter. 34. According to Regulation 48 of the Pension Regulations, 1995 a departmental proceeding, if instituted, while the employee was in service, shall after the retirement of the employee be deemed to be proceedings under the Regulations and shall be continued and concluded by the authority in the same manner as if the employee had continued in service. 35. The said provision further mentions that no departmental proceeding, if not instituted while the employee was in service, shall be instituted in respect of an event which took place more than four years before such institution. The proviso to the said provision mentions that the disciplinary proceedings so instituted shall be in accordance with the procedure applicable to disciplinary proceedings in relation to the employee during the period of his service. 36. The proviso to the said provision mentions that the disciplinary proceedings so instituted shall be in accordance with the procedure applicable to disciplinary proceedings in relation to the employee during the period of his service. 36. The submission of the petitioner complaining about the issuance of the addendum charge sheet does not hold good in view of the aforesaid regulations guiding the petitioner. As the departmental proceeding was initiated while the petitioner was in service, accordingly the date of his superannuation stands extended till the conclusion of the said proceeding. Had the departmental proceeding not been initiated during the service tenure of the petitioner, then the bank would have been barred from initiating proceedings in respect of events which took place more than four years before such institution. Since the proceeding was duly initiated and remained pending on the date of his superannuation, there was no bar on the part of the employer to bring additional charges, over and above the charges which were already pending consideration in continuation of the initial charge sheet. The same is permissible as per the service regulation of the petitioner and the action of the respondent in issuing the additional charges in continuation of the earlier one, after his superannuation, cannot be faulted. 37. The submission of the petitioner that the report of the inquiry officer is perverse and based upon no evidence cannot be accepted. The Hon'ble Supreme Court in Sur Enamel (supra) categorically laid down that an enquiry can be said to have been held properly if the delinquent employee been clearly informed of the charges levelled against him, the witnesses are examined in the presence of the employee in respect of the charges, he is given a fair opportunity to cross examine witnesses, examine witnesses in his defence and the inquiry officer records his finding supported by reasons. 38. In the instant case, both the article of charges issued to the petitioner contained the details of the allegations levelled against him. The facts and figures in support of the said charges were also mentioned therein. The disciplinary proceeding continued for a prolonged period of time, for nearly two years. The management was not in haste in passing the final order impugned herein. The petitioner contested the proceeding with his defence representative. As many as 152 management exhibits and 26 exhibits of the petitioner were considered by the inquiry officer. The disciplinary proceeding continued for a prolonged period of time, for nearly two years. The management was not in haste in passing the final order impugned herein. The petitioner contested the proceeding with his defence representative. As many as 152 management exhibits and 26 exhibits of the petitioner were considered by the inquiry officer. The petitioner was afforded adequate opportunity to cross examine the management witnesses which he availed of. The report of the inquiry officer was duly forwarded to the petitioner and he submitted his statement in his defence. 39. The submission of the petitioner that there was no standardised loan application form, loan was not granted in respect of the same pond, loan in respect of a separate pond was granted only after the previous loans were liquidated, loans were not granted on the basis of fake lease deeds, so on and so forth are all questions of facts which are essentially looked into by the inquiry officer, being the fact finding authority. The petitioner failed to convince the inquiry officer with his defence. The petitioner had another opportunity before the disciplinary authority and a further opportunity before the appellate authority to disprove the allegations levelled against him. The petitioner failed to do so. It is too late in the day to make submissions before a writ court to go through the evidence relating to facts of the case, all over again. The same is impermissible in view of the law laid down by the Hon'ble Supreme Court, relied upon by the respondent mentioned hereinabove. 40. It has been repeatedly held that the scope of judicial review in matters relating to disciplinary proceedings with regard to service matters is extremely limited. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority [Lalit Popli (supra)]. 41. The Supreme Court in Maharaj Singh (supra) held that the jurisdiction of the High Court under Article 226 is supervisory and not an appellate one. Judicial review is not akin to adjudication of the case on merits as an appellate authority [Lalit Popli (supra)]. 41. The Supreme Court in Maharaj Singh (supra) held that the jurisdiction of the High Court under Article 226 is supervisory and not an appellate one. It is not open for the High Court to examine the evidence adduced before the inquiry authority and re-appreciate the same and disturb the findings arrived at. When the conclusion of the inquiry authority has been upheld by the disciplinary authority and the appellate authority, the High Court in judicial review ought not to alter the said finding. The facts of the case and the evidence adduced are not of such nature for the High Court to interfere with the same. 42. The submission of the petitioner that the likelihood of loss ought not to be the determining factor for imposing the penalty of removal upon the petitioner. It has been submitted that the decisions taken by the petitioner, on occasions, has resulted in huge profit to the bank. The aforesaid submission of the petitioner cannot be accepted in view of the law laid down by the Hon'ble Supreme Court in Nikunja Bihari Patnaik (supra) wherein the Court held that there may be instances of acts which have yielded profit to the bank but it is equally true that there are some other instances where the funds of the bank have been placed in jeopardy and the advances have become sticky and irrevocable. It is not a single act; it is a course of action spreading over a sufficiently long period, involving large number of transactions. In the case at hand, the bank levelled as many as twenty five allegations involving irregularities spread over a prolonged period of time involving several transactions, where the loans have not only been adjudged as NPA but have also caused actual loss of more than Rs. 23 lac to the bank apart from likely loss of Rs. 2,396.71 lac. 43. The Supreme Court on repeated occasions have held that every officer of the bank is supposed to act within the limits of his authority. If the officer is allowed to act beyond his authority, the discipline of the bank will disappear and the functioning would become chaotic and unmanageable. Bank employees deal with public funds and they ought not to embark upon adventures in the pretext of yielding profit. If the officer is allowed to act beyond his authority, the discipline of the bank will disappear and the functioning would become chaotic and unmanageable. Bank employees deal with public funds and they ought not to embark upon adventures in the pretext of yielding profit. Acting beyond one's authority is misconduct [P.C. Kakkar (supra), Nikunja Bihari Patnaik (supra), Vishwa Mohan (supra), T.J Paul (supra)]. 44. It is the consistent view of the Supreme Court that the High Court under Article 226/227 cannot go into the quantum and proportionality of punishment as long as the punishment is not so unreasonable that it shocks the conscience of the Court. The power to punish an employee is the discretion of the employer and the Courts do not interfere, unless it is found that the proceeding was vitiated due to non-observance of the relevant rules or non-compliance of the principles of natural justice. [P. Chandra Mouli (supra), T.J. Paul (supra), P. Gunasekaran (supra)], 45. The contention of the petitioner that the disciplinary authority moulded the charges and introduced new charges also cannot be accepted. A plain and harmonious reading of the charges and the final order passed by the disciplinary authority makes it evidently clear that the charges and allegations had all along been the same. The disciplinary authority dealt with each and every charge and recorded his detailed findings. He applied his mind independently to each of the charges and recorded his observations. The observations recorded by the disciplinary authority ought not to be confused as introduction of new charges. It was merely the thought process of the disciplinary authority which got reflected and recorded in the final order. The same can hardly be taken as new charges. 46. In Nityananda Paul (supra) this Court was pleased to hold that the forfeiture of gratuity is permissible only to the extent of the damage or loss caused. In the said case the loss or damage caused to the bank was neither indicated nor quantified. None of the charges in that case mentioned about the actual loss caused to the bank. In the instant case, apart from the allegation of likelihood of loss amounting to several crores of rupees, the charge sheet categorically mention that the action of the petitioner has caused actual loss of Rs. 23 lac and odd to the bank. The cited case accordingly does not help the petitioner. 47. In the instant case, apart from the allegation of likelihood of loss amounting to several crores of rupees, the charge sheet categorically mention that the action of the petitioner has caused actual loss of Rs. 23 lac and odd to the bank. The cited case accordingly does not help the petitioner. 47. The Hon'ble Supreme Court in the matter of C.G.Ajay Babu (supra) relies upon the provisions of the Payment of Gratuity Act, 1972 and observes that gratuity can be forfeited only to the extent of damage or loss caused to the bank. In case, the termination of the employee is for any act or wilful omission or negligence causing any damage or loss to the employer, the loss can be recovered from the gratuity by way of forfeiture. 48. As the bank has already quantified the loss caused due to the misconduct on the part of the petitioner, the forfeiture of gratuity cannot be questioned. Consequently, the prayer of the petitioner for declaration that Regulation 46(1)(e) of the Service Regulations, 1979 is ultra vires the provisions of the Payment of Gratuity Act 1972 and he is entitled to gratuity on his superannuation cannot be acceded. 49. The circular of the bank dated 21-07-2015, relied upon by the petitioner, has specifically clarified that the bank was entitled to enforce the provisions of Regulation 46 with regard to ineligibility of an officer for gratuity upon his termination. As such the said circular also does not come to the rescue of the petitioner. 50. The service regulation of the petitioner provides for lapse of leave on termination from service. The petitioner has relied upon the bank's circular dated 21-07-2015 wherein the bank accepted the proposal of the Indian Banks' Association and took a decision that the benefit of encashment of privilege leave will be available to an officer employee whose services have been terminated by infliction of punishment of 'compulsory retirement' on or after 30-04-2015. The Court is of the view that the aforesaid circular will not come to the assistance of the petitioner, in as much as, the punishment imposed upon the petitioner is 'removal from service' and not 'compulsory retirement'. Had the petitioner been compulsorily retired from service then only the aforesaid circular could have been pressed. The Court is of the view that the aforesaid circular will not come to the assistance of the petitioner, in as much as, the punishment imposed upon the petitioner is 'removal from service' and not 'compulsory retirement'. Had the petitioner been compulsorily retired from service then only the aforesaid circular could have been pressed. The nature of punishment being removal from service the benefit of the circular dealing with compulsory retirement cannot be made applicable in case of the petitioner. Privilege ought not to be extended to an employee removed from service by way of punishment. The challenge put forth by the petitioner to the provision for forfeiture of leave on removal from service does not appeal to the court. 51. In the matter of Narinder Mohan Arya (supra) the Supreme Court laid down certain guidelines to be followed by the High Court in the event the findings arrived in the disciplinary proceeding are questioned. On perusal of the case records it appears that the inquiry officer restricted his enquiry and based his findings from amongst the exhibits produced by the parties. He neither collected nor relied upon material(s) from outside sources during the enquiry. The inquiry officer afforded reasonable opportunity to the petitioner to disprove the allegations brought against him, the principles of natural justice have been duly complied with, the disciplinary proceeding proceeded in accordance with the relevant rules and there were overwhelming evidence against the petitioner, far more than mere suspicion or presumption, culminating in the penalty of removal of the petitioner from service with consequential order of forfeiture of his retirement benefits. 52. The Supreme Court in Jai Bhagwan (supra) observed that though there is some evidence but there is no direct and reliable evidence produced by the management in the departmental proceeding. The evidence was drawn by way of a link-up. The Court was of the opinion that it was a case of 'no evidence'. The ratio of the aforesaid judgement cannot be made applicable in the case of the petitioner as there are clinching evidences against him and the case of the petitioner most certainly does not fall in the category of 'no evidence'. 53. In Roop Singh Negi (supra), the management lodged FIR against the employee. The criminal Court adjudicated the same and discharged the appellant. 53. In Roop Singh Negi (supra), the management lodged FIR against the employee. The criminal Court adjudicated the same and discharged the appellant. The management proceeded with the departmental proceeding and dismissed the employee from service, but failed to record any reason for such dismissal. The Court observed that no witness was examined to prove the documents and documents were merely tendered without the contents being proved. Such is not the case at hand. A colossal amount of documents was produced and several witnesses were examined and cross examined. Even thereafter the petitioner failed to prove his innocence. The inquiry officer as well as the disciplinary authority scanned the documents and the evidence adduced by the witnesses and concluded that the petitioner was guilty of the charges levelled against him. The report of the inquiry officer was not based on mere ipse dixit or on surmises and conjectures, but the report of the inquiry officer is loaded with definitive facts and figures. Hence, the said decision also does not help the petitioner in any manner. 54. In Purnendu Sekhar Nanda (supra) the Court observed that the delinquent was not given any opportunity to know the materials placed in the proceedings and he also did not have any occasion to deal with the evidence given by the witnesses in the proceedings. The Court further observed that because of withholding of the best evidence, the employee had no opportunity to cross examine the said witness. It was upon such facts that the Court was of the opinion that the report of the inquiry officer was perverse. The facts of the said case are entirely different from the case at hand, where the petitioner was given fair and reasonable opportunity to produce documents in his support, examine his witnesses and also cross examine the witnesses who deposed against him. Accordingly, the aforesaid decision also does not save the case of the petitioner. 55. In Sur Enamel (supra) the Supreme Court laid down the guidelines to be followed in a departmental inquiry and the same has been duly followed herein. 56. Another point heavily relied upon by the petitioner is that he was not given an opportunity to defend himself when the disciplinary authority differed from the findings arrived at by the inquiry officer. In Sur Enamel (supra) the Supreme Court laid down the guidelines to be followed in a departmental inquiry and the same has been duly followed herein. 56. Another point heavily relied upon by the petitioner is that he was not given an opportunity to defend himself when the disciplinary authority differed from the findings arrived at by the inquiry officer. It has been strenuously contended that the same amounts to violation of the principles of natural justice and accordingly the impugned order of penalty ought to be set aside. To augment his submission, the petitioner has relied upon the decisions of the Supreme Court in the matter of Lav Nigam (supra) and Kunj Bihari Misra (supra). The same are settled principles of law. 57. In the instant case out of the 25 charges levelled against the petitioner, the disciplinary authority partly differed with the findings of the inquiry officer with only one charge and completely differed with two charges. According to the inquiry officer, charge no. 6 was partly proved but the disciplinary authority opined that the charge was proved. As regards the additional charge nos. 1 and 4, the inquiry officer was of the opinion that the charges were not proved but the disciplinary authority concluded that the said charges stood proved. 58. Assuming that the petitioner was not heard prior to passing the final order upon disagreement with the findings of the inquiry officer would the ultimate decision of the disciplinary authority be different? In the facts and circumstances of the instant case, would it have been possible for the disciplinary authority to arrive at a different conclusion as it differed with the findings in respect of 2 out of the 25 charges? The disciplinary authority could have passed the same order on the basis of the charges which stood conclusively proved against him. Partial proof of the charge is an indication that the charge has been proved to some extent and the disciplinary authority is free to proceed with passing the final order relying upon the charges which stood proved. 59. Accordingly, in the present set of facts, not giving a further opportunity to the petitioner to represent his case in respect of the additional charge numbers 1 and 4 is not fatal and the same does not provide a handle to the petitioner to challenge the final order passed in the disciplinary proceeding. 60. 59. Accordingly, in the present set of facts, not giving a further opportunity to the petitioner to represent his case in respect of the additional charge numbers 1 and 4 is not fatal and the same does not provide a handle to the petitioner to challenge the final order passed in the disciplinary proceeding. 60. In Lav Nigam (supra), the Supreme Court relied upon the consistent view that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions. Only after hearing the employee, the disciplinary authority would arrive at a final finding. 61. In the instant case, the inquiry officer and the disciplinary authority were ad idem with regard to the findings of as many as 20 out of the 25 charges which stood wholly proved or partially proved and differed with merely 2 charges and partially differed with one charge. The charges primarily related to loans. Accordingly, giving a further opportunity to the petitioner to represent his case would have dragged the disciplinary proceeding for a longer period of time. The petitioner already stood superannuated in the year 2014 and carrying the matter further would have caused more prejudice to the petitioner. 62. Remanding the matter back to the disciplinary authority at this stage, for giving the petitioner another opportunity to defend himself in respect of the charges which he differed in opinion with the inquiry officer will, in my opinion, not be the right approach in the facts and circumstances of the instant case. The same will cause more harm than good to the petitioner. The departmental proceeding ought not to continue for an indefinite period and the conclusion arrived at ought not to be disturbed on mere technical grounds. Had there been any glaring defect in the decision making process, then certainly it is open for the Court to interfere with the same. The Court is concerned with the decision making process and not the decision arrived at by the authority. 63. The petitioner held a very high position in the bank. He acted in three different capacities. He ought to have acted with a sense of responsibility and high degree of transparency. He should not have acted in any manner prejudicial to the interest of the bank. 63. The petitioner held a very high position in the bank. He acted in three different capacities. He ought to have acted with a sense of responsibility and high degree of transparency. He should not have acted in any manner prejudicial to the interest of the bank. High ranking officers should always lead by examples and not set a bad precedent for junior officers to follow. Higher the post equally high are the duties and responsibilities. He is surely accountable for any loss caused to the bank on account of his action(s). 64. The decision and the penalty imposed upon the petitioner appears to have been passed in accordance with the service regulations and in conformity with the principles of natural justice. There is hardly any reason to interfere with the proceedings and the final order impugned herein. 65. The writ petition fails and is hereby dismissed. 66. No costs. 67. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities.