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2021 DIGILAW 295 (ORI)

General Manager v. Madhusudan Mallick

2021-07-07

S.MURALIDHAR, SAVITRI RATHO

body2021
JUDGMENT S. Muralidhar, C.J. - I.A. No.1094 of 2020 1. For the reasons stated in the application, prayer for condonation of delay in filing the present appeal is allowed. W.A. No.359 of 2020 2. This appeal by Syndicate Bank is directed against the judgment dated 26th February, 2020 passed by the learned Single Judge disposing of W.P.(C) No.18668 of 2010 which was filed by the Respondent herein. 3. By the impugned order, the learned Single Judge has set aside the order of the Disciplinary Authority (DA) as well as the Appellate Authority (AA) on the ground that there was no proper enquiry by the Enquiry Officer (EO) and remitted the matter to the EO for fresh enquiry in regard to the charges framed against the Respondent by providing sufficient opportunity to defend his case in the event that he seeks it. Further since sufficient time had already been lost, if the particular EO was unable to conduct the enquiry, it would be open to the Appellant to appoint a new EO, who would, after accepting the written statement of defence to be filed by the Respondent within two weeks, conduct a fresh inquiry and submit a report within three months from the date of submission of the written statement of defence. 4. Consequently, it was directed that the Respondent will be relegated to the stage of the submission of the enquiry report and any financial benefits would be dependent on the ultimate outcome of the disciplinary proceedings. 5. Although the above impugned order was passed on 26th February, 2020 it appears that no further steps have been taken by the Bank till date. 6. This Court has heard the submission of Mr. B.N. Udgata, learned counsel appearing for the Appellant and has perused the impugned order of the learned Single Judge as well as the pleadings of the writ petition and the appeal. 7. The background facts are that the Respondent while working as a clerk in the Balasore Branch of the Bank was placed under suspension by the order dated 16th October, 2008 in contemplation of the disciplinary inquiry instituted against him on the allegation that he had "misused the password of the officers to put through certain transactions entered by you and fraudulently withdrew Rs.50,000/- from SB Account of the customers". The charge stated that the Respondent had abused his official position and misused the trust of the Bank in order to misappropriate the customers' money and that it is constituted gross misconduct within the meaning of Clause 5(j) of the Bi-partite Settlement (MOS 10.04.2002). 8. By reply dated 4th November, 2009 the Respondent denied the allegation as false. Each of the transactions mentioned in the charge sheet as being fraudulent, was denied. 9. On 1st February, 2010 the Bank appointed an Enquiry Officer (EO). The enquiry hearings were held on 10th and 11th December, 2009 and one witness was examined on behalf of the Management. It was noted in the enquiry report that the Respondent did not produce any evidence either oral or documentary. The Respondent did not examine himself either as witness. 10. The EO submitted an enquiry report dated 18th January, 2010 holding the charge to be proved. A copy of the enquiry report was furnished to the Respondent by letter dated 1st February, 2010. He made his submission in regard thereto on 17th February, 2010 inter alia stating that there was no complaint by any of the customers against him and that he had not used the Supervisor's password. 11. The DA then considered the above statement and concurred with the EO report. By an order dated 18th May, 2010 the DA awarded the Respondent the punishment of compulsory retirement from service with superannuation benefits. Further the period of suspension was not to be treated as duty. 12. Aggrieved by the above order, the Respondent filed an appeal which came to be rejected by the AA by an order dated 28th August 2010. Thereafter the writ petition i.e. W.P.(C) No.18668 of 2010 was filed by the Respondent in this Court. 13. The learned Single Judge has in the impugned order noted that while the Management was represented by a Senior Manager (Vigilance), the Respondent was not competent to face the disciplinary proceedings or defend his case properly. The learned Single Judge was of the view that the Respondent should have been offered by the EO the assistance of a Bank Officer. He should have been given an opportunity to file a written statement of defence. 14. The learned Single Judge observed that taking into consideration the charges leveled and the manner of conducting the enquiry, there was a violation of the principles of natural justice. He should have been given an opportunity to file a written statement of defence. 14. The learned Single Judge observed that taking into consideration the charges leveled and the manner of conducting the enquiry, there was a violation of the principles of natural justice. Accordingly, the enquiry report of the EO and the orders of the DA and AA were set aside and the matter remitted for a fresh inquiry. 15. Mr. Udgata for the Bank sought to submit that all the procedural formalities were completed by the Appellant and therefore, there was no occasion for the learned Single Judge to interfere with the orders of the DA and the AA. He submitted that on 4th November, 2009 the Respondent had in fact submitted his statement of defense. He had opted not to lead evidence. 16. The above submissions have been considered. The fact of the matter was that the Management was indeed represented by a highly qualified Senior Manager (Vigilance) and there was therefore, an inequality of arms as far as conduct of the inquiry was concerned. As observed by the learned Single Judge, the Respondent was a clerk and had no means to properly defend himself. Further, no attempt was made by the EO to ensure that the Respondent had the assistance of some other Bank Officer to properly defend himself in the proceedings. 17. The Court further notes that no prejudice whatsoever is caused to the Appellant Bank by the impugned order of the learned Single Judge. All that is ordered is for the Bank to conduct a fresh inquiry in a time-bound manner, complying with the requirements of a just and reasonable procedure consistent with the rules of natural justice. 18. The learned Single Judge has also ensured that the fresh enquiry is completed in a time bound manner. Consequently, this Court not persuaded to interfere with the order of the learned Single Judge. 19. Had the Bank complied with the impugned order, by now the enquiry would be completed and the result, one way or the other, would be known. By its inaction, the Bank delayed the resolution of the dispute. Nevertheless, while dismissing the appeal the Court directs that the time period indicated in the penultimate sub para of para 7 of the impugned order will commence hereafter. By its inaction, the Bank delayed the resolution of the dispute. Nevertheless, while dismissing the appeal the Court directs that the time period indicated in the penultimate sub para of para 7 of the impugned order will commence hereafter. In other words, the period of three months for completion of enquiry in terms of the judgment of the learned Single Judge would commence from now onwards. 20. The appeal is dismissed, but in the circumstances, with no order as to costs. 21. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.