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2020 DIGILAW 66 (ORI)

Madhusudan Mallick v. General Manager

2020-02-26

BISWANATH RATH

body2020
JUDGMENT Biswanath Rath, J. - This writ petition involves a challenge to the order of punishment of compulsory retirement from service by the disciplinary authority, vide Annexure-7 as well as the order of confirmation of the punishment imposed by the appellate authority, vide Annexure-10 and thereby while seeking quashing both the above orders, the petitioner sought for a direction to the opposite parties to reinstate him in service with all service benefits. 2. Short background involving the case is that the petitioner after being selected in due process of selection was appointed as a Clerk in the Syndicate Bank. The petitioner claimed that since the date of his joining in the Bank, he has been discharging his duty to the utmost satisfaction of all concerned. It is because of co-employees became inimical towards him, they went on destroying some relevant documents to put the petitioner into trouble and in the process, the petitioner was shocked to receive an order of suspension, vide Annexure-1 passed by the Assistant General Manger-cum-Disciplinary Authority, Syndicate Bank, O.P.2 on 16.10.2008 on contemplation of disciplinary proceeding. It is about one year of suspension, the petitioner was served with the charge-sheet and on the asking of the disciplinary authority, the petitioner submitted his written statement of defence denying all the allegations on 4.11.2009 disclosing therein that he has been simply victimized for some wrong doings of his co-employees. It appears, the disciplinary authority being not satisfied with the statement of defence filed by the petitioner, vide Annexure-3 appointed one Mr. Ashok Kumar Das, Senior Manager of Nodal IR Cell, Regional Office, Kolkata as Enquiry Officer. During course of enquiry, the petitioner filed an application begging apology indicating therein that in the event any unintentional mistake was committed by him, he may be pardoned/excused. The petitioner also contended therein that since there is no suffering either of the customer or the Bank, the proceeding initiated against him may be dropped. It is alleged that despite such request also the proceeding continued. In the process, the Enquiry Officer submitted the enquiry report with service of copy of the same on the petitioner on 1.2.2010. The petitioner also contended therein that since there is no suffering either of the customer or the Bank, the proceeding initiated against him may be dropped. It is alleged that despite such request also the proceeding continued. In the process, the Enquiry Officer submitted the enquiry report with service of copy of the same on the petitioner on 1.2.2010. Based on the enquiry report pointing that Doing an act prejudicial to the interest of the Bank stands to be proved against the petitioner and not being satisfied with the explanation of the petitioner dependant on the service of copy of the enquiry report, the disciplinary authority alleged to have not considered all these and even in clear refusal to consider the apology made by the petitioner, passed the order of compulsory retirement of the petitioner from service of the Bank, vide the impugned order at Annexure-7. The petitioner preferred an appeal against the impugned order passed by the disciplinary authority and the appeal at the instance of the petitioner was also dismissed, vide Annexure-10. The petitioner contended that the appellate authority did not consider the grounds raised therein and passed the illegal order of rejection involving the appeal, vide Annexure-10. 3. Assailing the impugned orders, Sri Niranjan Lenka, learned counsel for the petitioner contended that when each of the Account Holders, particularly the customers submitted application before the Enquiry Officer and the Branch Manager that they have no complain in respect of their Accounts and their Accounts are intact, the enquiry should have been concluded on being satisfied with the note of the customer. It is also contended that there being no loss either to the customers or to the Bank, the proceeding should have also been dropped otherwise. Sri Lenka, learned counsel for the petitioner also contended that for the petitioner s begging apology, the Enquiry Officer taking into consideration the application of the customers, who have made no complain against the petitioner, could have accepted the apology at the instance of the petitioner and keeping in view that there is no loss to either the customers or the Bank should have closed the enquiry observing in favour of the petitioner. It is in the above circumstance, Sri Lenka, learned counsel for the petitioner contended that there is failure in understanding and/or appreciating the above material aspect by both the Enquiry Officer as well as the disciplinary authority. It is in the above circumstance, Sri Lenka, learned counsel for the petitioner contended that there is failure in understanding and/or appreciating the above material aspect by both the Enquiry Officer as well as the disciplinary authority. So far as the order of the appellate authority is concerned, Sri Lenka, learned counsel for the petitioner contended that for there being an allegation of punishment disproportionate to the quantum of allegation even assuming that there was procedural mistake but for having no ill-intention by the petitioner and for the Bank having not faced any loss and there being no involvement of any public money, all these should have weighed in the mind of the appellate authority and the appellate authority should have exonerated the petitioner from the charges. It is in the above premises, learned counsel for the petitioner prayed this Court to interfere with the impugned orders and for passing appropriate orders. 4. In his opposition, Sri B.N.Udgata, learned counsel for the O.P.-Syndicate Bank referring to the counter affidavit of the Bank contended that for the Enquiry Officer taking into account the pleadings of the parties and the material documents available on record submitted a report observing establishment of charge against the petitioner thereby also observing that the petitioner found to be doing an act prejudicial to the interest of the Bank amounting to gross-misconduct and the order of the disciplinary authority since based on the substance from the enquiry report for the involvement of a proven misconduct, there is no scope of this Court for interfering in such orders. On the appellate authority s observation, Sri Udgata, learned counsel for the Bank submitted that the appellate authority only after taking into consideration the grounds raised therein and considering the grounds vis- -vis the materials available on record being satisfied with the observation of the enquiry report was constrained to dismiss the appeal. Sri Udgata, learned counsel for the Bank also raised an objection on the maintainability of the writ petition on the premises that the petitioner being a workman in the Bank Establishment and for the application of the provision of I.D. Act instead of filing the writ petition should have undertaken industrial forum. Sri Udgata thus taking this Court to the observation in the enquiry report also attempted to demonstrate that it is a clear case of proven misconduct involving the petitioner. Sri Udgata thus taking this Court to the observation in the enquiry report also attempted to demonstrate that it is a clear case of proven misconduct involving the petitioner. Therefore, under the premises of settled position of law that this Court cannot sit as an appellate authority over the observation of the Enquiry Officer as well as disciplinary authority, Sri Udgata contended that for the limited role of the High Court involving such dispute, the writ petition cannot be entertained. 5. In his rejoinder response, Sri Lenka, learned counsel for the petitioner while attempting to refute the submissions made by the learned counsel for the Bank to protect the case of the O.Ps. referring to the plea of the petitioner in the rejoinder affidavit contended that for the petitioner already suffering involving an outcome in another disciplinary proceeding while he was working as Clerk at Baripada Branch for the minor punishment already imposed involving the first disciplinary proceeding, the punishment of compulsory retirement involving the second proceeding appearing to be disproportionate to the quantum of offence. 6. Considering the rival contentions of the parties, this Court finds, the petitioner faced the following charges :- You were working as Clerk at Balasore Branch since 1.7.2008 till you were placed under suspension vide HO:PD:IRD order No.011-SUSP/0089/PD/IRD (W) dated 16.10.2008. While working in your position as such, it is alleged, that you misused the password of officers to put through certain transactions entered by you and fraudulently withdrew Rs.50,000.00 from the SB Account of customers. That on 19.8.2008 while working as cashier, you allegedly defalcated an amount of Rs.30,000.00 in the account of Smt. Malati Panigrahi by making alteration on her withdrawal slip from Rs.10,000.00 to Rs.40,000.00 and authenticated the same by putting forged signature of the customer. Further, you did not obtain second signature of the customer at the time of making payment. Instead, you yourself put forged signature of the customer as second signature and fraudulent withdrew the amount. On 2.9.2008, in order to cover up the fraudulent withdrawal by you and to compensate the amount in Smt. Panigrahi s account you passed a fraudulent credit of Rs.30,000.00 to the account of Smt. Malati Panigrahi by debiting the amount to Remittance Parking GL Account. Thereafter, you unauthorisedly transferred Rs.30,000.00 from SB Account No.220/566 of Shri Jitendra Nath Majhi, without his mandate, Remittance Parking GL Account to square off the debit entry. Thereafter, you unauthorisedly transferred Rs.30,000.00 from SB Account No.220/566 of Shri Jitendra Nath Majhi, without his mandate, Remittance Parking GL Account to square off the debit entry. You made these fictitious entries in the system using your own password and authorised these entries fraudulently using the password of Shri B.C.Mallick, Asst. Manager. The relevant vouchers are not available with the branch records indicating that either vouchers are not available with the branch records indicating that either vouchers were not prepared or subsequently they were removed and destroyed by you. On 1.9.2008, Shri Jitendra Nath Majhi had visited Balasore branch in order to encash his matured VCC for Rs.95,912.67. He presented a withdrawal slip for withdrawing cash of Rs.45,912/- and another blank withdrawal slip bearing No.44005 along with one VCC account opening form, both signed by the customer were handed over to you for making a fresh VC for Rs.50,000/- on 1.9.2008. You filled up the withdrawal slip in your handwriting and withdrew Rs.20,000/-, misappropriating the same. The balance of Rs.30,000.00 available in party s SB A/c was transferred by you on 2.9.2008 to SB A/c of Smt. Malati Panigrahi to cover up the fraudulent withdrawal of Rs.30,000.00 done by you. Although the VCC opening form and the credit slip for Rs.50,000/- were filled up by you on 1.9.2008, but no VCC was made, as per the mandate of the customer. Next day, i.e., on 2.9.2008, in order to cover up your fraud, you issued a fraudulent VCC for Rs.50,000.00 in the name of Shri Jitendra Nath Majhi by debiting the amount to Remittance Parking GL Account, falsely mentioning in the credit slip that the VCC was created out of existing VCC proceeds. Thereafter, on the same day, you unauthorisedly transferred Rs.50,000.00 from SB Account No.220.17243 of Shri Udkar Jena to Remittance Parking GL Account to round off the debit entry. On 11.9.2008 you again made unauthorised transfer of Rs.50,000.00 from SB Account No.220.9022 of Shri N.C. Padhi, without the customer s mandate, to SB Account of Shri Udakar Jena. The transactions were put through your password and authorised under the Password of Shri B.C. Mallick, Asst. Manager fraudulently. The relevant vouchers are not available with the branch records indicating that either vouchers were not prepared or subsequently they were removed and destroyed. The transactions were put through your password and authorised under the Password of Shri B.C. Mallick, Asst. Manager fraudulently. The relevant vouchers are not available with the branch records indicating that either vouchers were not prepared or subsequently they were removed and destroyed. On 5.11.2009, a sum of Rs.50,000.00 was deposited in the account of Shri N.C. Padhi in cash by a person whose identity could not be ascertained. Thus you indulged yourself in debiting one account and credited the same amount to other account so that the customers could not know the unauthorised debits in their accounts. You had chosen the above customers for your fraudulent activities since you are on friendly terms with them. As such they could not suspect your mala fide intention. Your above acts of misuse of the password of officers to authorise fraudulent transactions entered by you, fraudulent withdrawals from the SB Account of the Customers, fictitious information furnished in VCC Credit Slip for Rs.50,000.00, misuse of Remittance Parking GL Account and other SB Accounts of the customers to route your fraudulent transactions are highly immoral, dishonest and serious in nature. You have abused your official position as a Bank employee and misused the trust reposed in you by the Bank to misappropriate the customer s money. By your above fraudulent acts you have tarnished the image of the Bank in public and your acts constitute gross misconduct within the meaning of clause No.5(j) of the Bi-partite Settlement (MOSC 10.04.2002), making you liable for disciplinary action. You are, therefore, charged for committing the gross misconduct of Doing an act prejudicial to the interest of the Bank vide Clause 5(j) of the Bipartite Settlement (MOS dated 10.4.2002). The charge-sheet communicated to the petitioner with a provision to submit his statement of defence along with all copies of documents and list of witnesses relied upon by the Bank to sustain the charges, as clearly appears from pages-13 & 14 of the brief. It is pursuant to the above, it appears, the petitioner also filed a statement of defence. On appointment of Enquiry Officer, the petitioner faced the enquiry. The enquiry being concluded on contest of the petitioner, the Enquiry Officer submitted his report, vide Annexure-4 and the disciplinary authority again asked the petitioner to file his response to the enquiry report. It is pursuant to the above, it appears, the petitioner also filed a statement of defence. On appointment of Enquiry Officer, the petitioner faced the enquiry. The enquiry being concluded on contest of the petitioner, the Enquiry Officer submitted his report, vide Annexure-4 and the disciplinary authority again asked the petitioner to file his response to the enquiry report. Going through the enquiry report, this Court observes, to the examination of the Management witnesses, the petitioner chose not to cross-examine the Management witnesses. This Court also finds, the charge-sheeted employee did not produce any evidence either oral or documentary to substantiate his case except making oral submission that he is innocent and the charges levelled against him are false. He had already put in 32 years of service in Syndicate Bank and during such period, he had never done any act against the interest of the Bank and its customers. But it appears, in his oral submission, the petitioner requested the Management to give him 15 days time to submit his written statement. It is pursuant to the above development, it appears, the Enquiry Officer instead of providing last opportunity of defence to the delinquent in haste rather based on the evidence from the Management side and the documents relied on by the Management on discussion of all the same has come to hold that the issues framed therein have all gone against the delinquent, the petitioner. It is on the basis of his observation involving the issue, the Enquiry Officer ultimately gave his finding holding that the charge of doing an act prejudicial to the interest of the Bank vide Clause-5(j) of the Bipartite Settlement alleged against the petitioner, Sri Madhusudan Mallick is proved in the enquiry. The petitioner filing response to the enquiry report, copy of which being served on him, while refuting the allegation against him and the findings involving the Enquiry Officer ultimately prayed for excusing him in the event there is any missentry taking the same to be an inadvertent one. It is at this stage, this Court finds, the petitioner filed some documents appearing to be the correspondences of such customers addressed to the Officers of the Bank not only indicating that they are satisfied with the service provided to them by the petitioner but they have also made it clear that they have no complain. It is at this stage, this Court finds, the petitioner filed some documents appearing to be the correspondences of such customers addressed to the Officers of the Bank not only indicating that they are satisfied with the service provided to them by the petitioner but they have also made it clear that they have no complain. All these letters appear to have been issued to the competent authority by the Bank when the enquiry proceeding was pending. 7. Keeping in view the above background, this Court now proceeds to consider the order of the disciplinary authority. On perusal of the disciplinary authority s observation, this Court finds, there is clear observation that the proceeding of the Enquiry Officer has been closed with examination of only one witness and the disciplinary authority further observed that during enquiry, the CSE/Defence was given all opportunity by the Enquiry Officer for producing his witnesses, evidence, defence and also for cross-examining the Management witnesses. It is at this stage, looking to the report of the Enquiry Officer, this Court takes note of the observation of the Enquiry Officer at page-21 of the brief the CSE/Defence submitted that they did not wish to cross-examine MW-1 . The defence did not produce any evidence either oral or documentary including the CSE during the enquiry. As the CSE did not appear as witness in the enquiry, Enquiry Officer enquired with the CSE what he had got to say about the circumstances/evidences appearing against him during the enquiry. In his oral submission, the CSE stated that he was innocent and the charges levelled against him were false. He had already put in 32 years of service in the Syndicate Bank and during this period he had never done any act against the interest of the Bank and the customers. As at the moment, he had financial problems, he requested the Enquiry Officer to give him 15 days time to submit his written statement. Both the Management and the Defence did not submit their respective written arguments in support of their case in spite of lapse of more than one month time. As at the moment, he had financial problems, he requested the Enquiry Officer to give him 15 days time to submit his written statement. Both the Management and the Defence did not submit their respective written arguments in support of their case in spite of lapse of more than one month time. From the above and looking to the position of the charge-sheeted witnesses being a Clerk in the Bank Establishment, this Court feels, the Charge-sheeted Employee was not competent enough to face disciplinary proceeding against the mighty Management being represented by highly qualified personnel, which has examined Sri Anirudha Mitra, Senior Manager, Vigilance. It is under the circumstances, for the petitioner during enquiry asking for time to submit his written statement of defence and further looking to the position of a Clerk in the Bank, this Court observes, the CSE since was not in a position to defend his case properly should have been offered to take help of a Bank Officer. Being a model employer, the disciplinary authority could have realized this aspect and provided an opportunity to the petitioner to defend his case through proper assistance by a competent person, in the minimum, a Bank Officer or even in worse should have at least given opportunity to file his written statement of defence. This Court here observes that the CSE had no case to be considered by the Enquiry Officer. Taking into consideration the charges levelled and the manner of conducting the enquiry, this Court observes, there is violation of natural justice. The enquiry proceeding rather has been concluded taking due advantage of incompetency and innocence of a person of the rank of Clerk in a Bank. It is in the circumstance, this Court finds, not only the enquiry report but the order of the disciplinary authority is also not sustainable. Accordingly, the order of the appellate authority suffers on this score alone. It is in the circumstance, this Court finds, not only the enquiry report but the order of the disciplinary authority is also not sustainable. Accordingly, the order of the appellate authority suffers on this score alone. For this Court s observation herein above, this Court while interfering with the impugned orders passed by Disciplinary Authority as well as the Appellate Authority on the premises that there was no proper enquiry by the Enquiry Officer declaring the enquiry report unworkable and setting aside both Annexures-7 & 10 respectively remits the matter to the Enquiry Officer for fresh enquiry involving the charges framed against the petitioner by providing official assistance to the petitioner to defend his case in the event the CSE asked for the same. This Court here observes that for sufficient loss of time in the meantime, if the particular Enquiry Officer is not available to re-visit the enquiry after accepting the written statement of defence to be submitted by the Charge-sheeted Employee within two weeks hereafter, it will be open to the Management to re-appoint a new Enquiry Officer then the newly appointed Enquiry Officer after accepting the written statement of defence will re-conduct the enquiry and submit his fresh report within three months from the date of submission of written statement of defence. As a consequence of remand of the matter, the position of the petitioner will be relegated back to the stage of submission of enquiry report and any arrear financial benefit shall be dependent on the ultimate outcome in the disciplinary proceeding involved herein. 8. The writ petition succeeds but however with an order of remand. There is however no order as to cost.