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2022 DIGILAW 1092 (JHR)

Yugal Kishore, s/o late Ramautar Lal v. Jharkhand Gramin Bank through its Chairman

2022-09-01

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : Shree Chandrashekhar, J. The appellant has challenged the order dated 19th December 2018 passed in W.P.(S) No. 4036 of 2013. 2. In the departmental enquiry which was initiated by serving the memorandum of charge dated 31st December 2009, the appellant was awarded punishment of compulsory retirement on 18th July 2012. The appellate authority dismissed the appeal preferred by the appellant against the punishment of compulsory retirement by an order dated 5th December 2012. 3. The aforesaid orders passed against the appellant in the departmental enquiry were challenged by him in W.P.(S) No. 4036 of 2013 which has been dismissed on the ground that the misconduct imputed against the delinquent employee was found established in a full-fledged disciplinary proceeding. 4. Brief facts of the case are that the appellant was appointed as Supervisor in the then Ranchi Kshetriya Gramin Bank (now, Jharkhand Gramin Bank). When he was posted as Manager at Brambay Branch an audit was conducted on 12th December 2008 and cash shortage of Rs.33470/-was found during verification. The appellant was placed under suspension on 18th March 2009 and the following imputations were levelled under charge-sheet dated 31st December 2009: “During audit inspection on 12th December 2008 due to late arrival of Clerk-cum-Cashier Shri Naresh Prasad the cash could be opened and verified at 11.05 AM. Cash shortage of Rs.33,470/-was found during verification. The actual cash in the vault was Rs.2,44,567/-whereas the closing balance of cash as per the DCB of 11th December 2008 was Rs.2,78,037/-. To cover up the shortage, the Petitioner implanted two cheques of Rs.10,000/-and Rs.23,000/-drawn by him and the Clerk-cum-Cashier on their respective OD A/c Nos. 10 and 07 stating these to be late payments made on 11th December 2008. It was alleged that being the custodian of cash, petitioner failed to check and verify the actual cash before signing the daily cash balance book and also failed to ensure that the total amount of cash kept back in the safe at the end of the day together with the cash already in the safe must agree with the balance of cash on hand at the close of business of the day while signing the daily cash book on 11th December 2008. In such manner and in connivance with the Branch Cashier he took out Rs. 33,470/-and misappropriated the same. In such manner and in connivance with the Branch Cashier he took out Rs. 33,470/-and misappropriated the same. Thereby he breached Regulation No.19 of Jharkhand Gramin Bank Officers and Employees Service Regulation 2006.” 5. W.P.(S) No. 4036 of 2013 has been dismissed by the writ Court observing as under: “From the conspectus of the facts noted above, it can be drawn that the petitioner was the Manager of Brambay Branch of the respondent Bank when during audit inspection on 12th December 2008 a cash shortage of Rs.33,470/-was found at opening hours at 11.05 A.M. Though the petitioner tried to explain the shortage on the basis of two cheques of Rs.10,000/-and Rs.23,000/-drawn by him and the cashier on 11th December 2008 but the amount under the cheque was not debited from the account of the petitioner. These entries were neither made in the cash payment book nor the payment scroll book of the previous date before closing hours on 11th December 2008. There was also a shortage of Rs.470/-which, though has been sought to be explained by the Cashier, but there are no corroborating documents to show that they were entered in the relevant records as soiled notes being taken for exchange to the lead Bank i.e. Bank of India. Petitioner also has not signed the daily cash balance book at the closing of business hours on 11.12.2008. These acts reflected lack of responsibility on the petitioner as a Branch Manager and serious lapses in maintaining due diligence in the banking transaction. The explanation furnished by the petitioner did not inspire confidence in the Inquiry Officer and also the disciplinary authority for the aforesaid reasons. The inquiry proceedings were conducted after due opportunity to the petitioner. He has been served with a second show-cause containing the inquiry report. He also offered his reply thereto. The order of punishment has been passed upon consideration of the materials found during inquiry and taking into account his reply. The nature of banking transaction is such that these charges were found duly substantiated through documentary evidence adduced during inquiry. Perusal of the appellate order shows that the decision was taken by the Board of Directors upon consideration of the grounds urged by the petitioner in his memo of appeal. Appellate order has only been issued under the signature of the Chairman of the Bank under authorization of the Board of Directors. Perusal of the appellate order shows that the decision was taken by the Board of Directors upon consideration of the grounds urged by the petitioner in his memo of appeal. Appellate order has only been issued under the signature of the Chairman of the Bank under authorization of the Board of Directors. Therefore, contention of the petitioner on that count is not tenable in law. In such circumstances, when the misconduct was properly established in a full-fledged disciplinary inquiry, the findings of the disciplinary authority cannot be said to suffer from non application of mind or arbitrariness. The misconduct is such that it creates a loss of confidence upon the petitioner as he was functioning as Manager of the Branch. The quantum of penalty therefore does not appear to be disproportionate to shock to the conscience of the Court. As such this Court does not find any ground to interfere in the impugned decision. Writ petition is accordingly dismissed.” 6. The first ground taken by Mr. Rahul Kumar, the learned counsel for the appellant is that the order dated 5th December 2012 has been passed by the Chairman, Jharkhand Gramin Bank who was the appellate authority and while so the appellant shall be deemed not to have availed the remedy of appeal under the Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2006. 7. Pursuant to the order dated 14th October 2020 passed by this Court, original records have been produced by the Bank in the present proceeding. Mr. A. Allam, the learned Senior counsel assisted by Mr. A. K. Sahay, the learned counsel appearing for the Bank refers to Agenda No.-11 which was deliberated upon in 37th meeting of the Board of Directors of the Jharkhand Gramin Bank to submit that the decision on the appeal preferred by the appellant under Regulation No. 49(1) of the Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2010 was duly discussed by the Board of Directors in its 37th meeting and finding no substance the same was rejected. 8. On the basis of the aforesaid minutes of 37th meeting of the Board of Directors, Mr. 8. On the basis of the aforesaid minutes of 37th meeting of the Board of Directors, Mr. A. Allam, the learned Senior counsel for the Bank submits that the decision on the appeal preferred by the appellant was taken by the Board which is the appellate authority under Regulation No. 49(2) of the Regulations 2010 and the Chairman of the Bank has communicated the said decision to the appellant vide order dated 5th December 2012. 9. On such facts, we find no substance in the submission made on behalf of the appellant that he was denied the right to appeal against the order of compulsory retirement dated 18th July 2012. 10. The next plea urged on behalf of the appellant is that the departmental authorities did not reflect upon the stand taken by the appellant on the issue of breach of rules of natural justice and denial of an effective opportunity to put forth his defence. 11. Mr. Rahul Kumar, the learned counsel for the appellant refers to the show-cause notice dated 14th March 2009 which has a reference of excess of Rs.2/-in cash balance on 15th January 2009. The learned counsel for the appellant further refers to the imputation of charge to submit that the Bank itself was not sure whether the misappropriation was for Rs.33470/-or Rs.470/-only. Simply put, the appellant contends that in the departmental enquiry which was conducted on the basis of incomplete charge he could not have answered the charge effectively. 12. Referring to the defence set up before the enquiring officer by the appellant, the learned counsel for the appellant would submit that the charge could have at best been of negligence or dereliction of duty but not of misappropriation of money. A related argument arising from the aforesaid submissions is that the departmental authority should have adverted to and recorded their separate independent findings on the defence set up by the appellant. 13. The disciplinary authority has in his order dated 18th July 2012 referred to primary facts of the case but did not advert to the stand taken by the appellant who denied the charge of misappropriation of Rs.33470/-touching upon lack of integrity and working against the interest of the Bank. The disciplinary authority has simply recorded that: “in response to the aforesaid memorandum you submitted your representation dated 13th April 2011 which was not found acceptable”. 14. The disciplinary authority has simply recorded that: “in response to the aforesaid memorandum you submitted your representation dated 13th April 2011 which was not found acceptable”. 14. On a glance at the order dated 18th July 2012 we form an opinion that the order passed by the disciplinary authority complies with the requirements in law, except to the aforesaid extent. But then, this infirmity could have been taken note of by the appellate authority. 15. However, the appellate order dated 5th December 2012 is a cryptic order which except recording the facts of the case does not advert to any of the grounds raised by the appellant to challenge the order of compulsory retirement dated 18th July 2012. As we understand, this is not the law that the appellate order must be a detailed order running into several pages but the appellate authority which exercises vast powers even while dealing with an order passed in the departmental enquiry is required to apply his mind and say something, sort of saying that “I do not find any merit in the appeal”, before the appeal preferred by a delinquent government employee is dismissed. 16. In the order dated 5th December 2012, there is not even a reference of any of the grounds raised by the appellant. We have perused the deliberation by the Board of Directors in 37th meeting of the Board in which appeal preferred by the appellant was decided. There also we do not find any reference leave alone grounds on which the appeal preferred against the order of discussions on the compulsory retirement dated 18th July 2012 was based. 17. In “Divl. Forest Officer v. Madhusudhan Rao” (2008) 3 SCC 469 the Hon'ble Supreme Court has observed as under: “20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.” 18. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.” 18. In our opinion, it was necessary for the appellate authority to atleast indicate why the appeal lacks merit. This was necessary also for the reason that in the matters of punishment which would entail serious civil consequences for the government employee and results in ouster from the service the departmental authorities are mandated under the law to give reasons which is necessary for observance of the rules of natural justice. 19. In the aforesaid background, we are of the opinion that the appellate order dated 5th December 2012 warrants interference by this Court. 20. The order dated 19th December 2018 passed in W.P.(S) No. 4036 of 2013 is set-aside to the aforesaid extent and, consequently, L.P.A No. 242 of 2019 is allowed in the above terms. 21. Accordingly, the order dated 5th December 2012 is set-aside. The matter is remitted back to the appellate authority for taking a fresh decision on the appeal preferred by the appellant. 22. We are informed that the appellant has already attained the age of superannuation and, therefore, we expect that a decision on the appeal preferred by him shall be taken by the Board of Directors within a period of three months.