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2024 DIGILAW 689 (JHR)

Sujit Biswas v. Jharkhand Gramin Bank, Hindpiri

2024-07-11

B.R.SARANGI, SUJIT NARAYAN PRASAD

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JUDGMENT : I.A. No.11360 of 2023: 1. This interlocutory application has been filed for condoning the delay of 89 days, which has occurred in preferring this appeal. 2. Learned counsel for the appellant has prayed that the delay of 89 days may be condoned. 3. Learned counsel for the respondent states that he has no objection to the delay condonation application. 4. Considering the submission made by the learned counsel for the parties, the delay is condoned. 5. Accordingly, this interlocutory application is allowed. L.P.A. No. 429 of 2023: Prayer: 6. The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 17.04.2023 passed by the learned Single Judge in W.P.(S) No. 3039 of 2015, whereby and whereunder, the writ petitioner has been dismissed from service under the provision as contained under Regulation 39.2(b) of the Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2010. Further the order dated 19.01.2015 passed by the respondent no.3 confirmed by the appellate authority vide order dated 17.4.2015 passed by the respondent no.2 has been declined to be interfered with by dismissing the writ petition. Facts: 7. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under: The writ petitioner was appointed as Clerk cum Cashier in the Jharkhand Gramin Bank on 27.4.2010. It is the case of the writ petitioner that when he was posted at Harharguttu Branch as Clerk-cum-Cashier, the writ petitioner was put under suspension with the allegation that in saving bank account no. 2257 which was opened in the name of Dobra Godsora, who had died on 11.10.2001, the writ petitioner tampered with the computer and deleted the term “deceased” on 25.10.2008 by his user ID, so as to make it appear that the account holder is alive. Further, the petitioner has unauthorizedly added the name of Naran Godsora in the saving account no. 2257 in place of Dobra Godsora and the writ petitioner issued cheque book. Thereafter, an FIR was lodged by the Sr. Branch Manager, Jharkhand Gramin Bank against the writ petitioner and four named persons under Sections 420, 406, 468, 477 (A), 470, 408, 409 & 34 of IPC on the allegation of defalcation of money and dereliction of duties. 2257 in place of Dobra Godsora and the writ petitioner issued cheque book. Thereafter, an FIR was lodged by the Sr. Branch Manager, Jharkhand Gramin Bank against the writ petitioner and four named persons under Sections 420, 406, 468, 477 (A), 470, 408, 409 & 34 of IPC on the allegation of defalcation of money and dereliction of duties. Show-cause notice was issued on 25.11.2013 under the signature of Regional Manager, Jharkhand Gramin Bank and writ petitioner was directed to submit his reply. The writ petitioner submitted his reply on 03.12.2013, however, the respondents being not satisfied with the reply submitted by the writ petitioner, informed him that departmental proceeding will be initiated against the writ petitioner. Thereafter, the Enquiry Officer, after conducting the enquiry, hold the petitioner guilty of the charges levelled against him. Thereafter, the General Manager-cum-Competent Authority vide letter dated 29.9.2014 directed the writ petitioner to submit his reply to the enquiry report submitted by the Enquiry Officer. The writ petitioner submitted his reply on 01.10.2014 and took plea that the enquiry report is perverse and based on no evidence. However, being not satisfied with the reply submitted by the writ petitioner vide order dated 19.1.2015, the competent authority awarded the major penalty of dismissal from service under Regulation39.2(b) of Jharkhand Gramin Bank (Officers and Employees) Services Regulations, 2010. Thereafter, the writ petitioner preferred an appeal against the order of dismissal, however, the appellate authority dismissed the appeal preferred by the writ petitioner on 17.4.2015 and affirmed the order of dismissal issued against the writ petitioner. 8. It is evident from the factual aspect as referred hereinabove that the writ petitioner while working as Clerk-cum-Cashier under the respondent-Jharkhand Gramin Bank was put under suspension on the allegation that in saving bank account no. 2257 opened in the name of Dobra Godsora, who had died on 11.10.2001, the writ petitioner had tampered with the computer and deleted the term “deceased” on 25.10.2008 by his user ID, so as to make it appear that the account holder is alive. Further, allegation is that the writ petitioner has unauthorizedly added the name of Naran Godsora in the saving account no. 2257 in place of Dobra Godsora and the writ petitioner issued cheque book. A criminal case was instituted by the Sr. Further, allegation is that the writ petitioner has unauthorizedly added the name of Naran Godsora in the saving account no. 2257 in place of Dobra Godsora and the writ petitioner issued cheque book. A criminal case was instituted by the Sr. Branch Manager of the respondent-Bank under Sections 420, 406, 468, 477 (A), 470, 408, 409 & 34 of IPC on the allegation of defalcation of money and dereliction of duties. Show-cause notice was issued on 25.11.2013 directing the writ petitioner to submit his reply. The writ petitioner submitted his reply on 03.12.2013, but the reply having not been found satisfactory, a departmental proceeding was initiated against the writ petitioner. Thereafter, the enquiry officer proved the charge based upon which the disciplinary authority imposed the punishment of dismissal from service in view of the provision as contained under Regulation39.2(b) of the Regulations, 2010 which got affirmed by the appellant authority vide order dated 17.04.2015. Being aggrieved thereof, the writ petitioner approached this Court by filing a writ petition being W.P.(S) No. 3039 of 2015. The learned Single Judge on consideration of gravity of the allegation as also the scope of power under judicial review, has dismissed the writ petition by declining to interfere with the order passed by the original authority as well as appellate authority against which the present appeal has been preferred by the appellant-writ petitioner. Argument on behalf of the learned counsel for the appellant: 9. Mr. Sanjay Kr. Prasad, learned counsel for the appellant-writ petitioner has taken the following grounds: (i) The ground has been taken that the learned Single Judge has not appreciated the factual aspect in right perspective even though there is no absolute allegation of dereliction in duty since he was only working as Clerk-cum-Cashier under the direction of the concerned Branch Manager but only in order to save the Branch Manager, the writ petitioner has been made a scapegoat. (ii) The ground has been taken that the order of dismissal from service is highly disproportionate to the nature of the charge alleged against the writ petitioner but this aspect of the matter has also not been appreciated by the learned Single Judge. 10. Learned counsel for the appellant-writ petitioner, on the basis of the aforesaid, has submitted that order impugned suffers from error, as such, needs to be interfered with. Argument on behalf of the learned counsel for the respondents: 11. 10. Learned counsel for the appellant-writ petitioner, on the basis of the aforesaid, has submitted that order impugned suffers from error, as such, needs to be interfered with. Argument on behalf of the learned counsel for the respondents: 11. While on the other hand, Mr. Rajesh Kumar, learned counsel appearing on behalf of the respondents has taken the following grounds in defending the impugned order: (i) It has been submitted by referring the nature of allegation wherein the writ petitioner while working as Clerk-cum-Cashier, a custodian of the public money, has committed gross offence by deleting the name of the original account holder who had died and also replacing his name to that of Naran Godsara. The aforesaid conduct of the writ petitioner has been considered to be serious in nature, as such, a departmental proceeding had been initiated in which the writ petitioner had been granted opportunity of hearing but the enquiry officer has found the charge proved which having been accepted by the disciplinary authority, the punishment of dismissal from service has been imposed. The said order of the original authority has also been affirmed by the appellate authority. (ii) The contention has been raised that since there is no error in conducting the enquiry by the enquiry officer and when the charge has been found to be proved by the enquiry officer which has been accepted by considering the nature of allegation of defalcation of public money being its custodian, if the order of dismissal has been passed against the writ petitioner on the ground that the confidence upon the writ petitioner has been lost, therefore, if the learned Single Judge has taken the view of not interfering with the impugned decision, the same cannot be said to suffer from error. 12. Learned counsel for the respondents, based upon the aforesaid ground has submitted that the impugned order, therefore, needs no interference. Analysis: 13. This Court has heard the learned counsel for the parties, gone across the finding recorded by the learned Single Judge in the impugned order. 14. This Court, before entering into the legality and propriety of the impugned order passed by the administrative original authority and the appellate authority as also the finding recorded by the learned Single Judge, deems it fit and proper to refer the scope of judicial review in exercising the power under Article 226 of the Constitution of India. 14. This Court, before entering into the legality and propriety of the impugned order passed by the administrative original authority and the appellate authority as also the finding recorded by the learned Single Judge, deems it fit and proper to refer the scope of judicial review in exercising the power under Article 226 of the Constitution of India. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Union of India Vs. P. Gunasekaran, AIR 2015 SC 545 , in particular to paragraph 13, laying down following guidelines which are self-explanatory: “13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii)go into the proportionality of punishment unless it shocks its conscience.” The Hon’ble Apex Court in Management of State Bank of India vs. Smita Sharad Deshmukh and Anr., (2017) 4 SCC 75 , has laid down that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence. The Hon’ble Apex Court in Central Industrial Security Force and Ors. vs. Abrar Ali, AIR (2017) SC 200, has laid down following guidelines at paragraph 8 for interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, which is quoted herein below: “8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : ( AIR 2011 SC 1931 , Para 6), this Court held as follows: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 this Court held as follows: "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (a) the inquiry is held by a competent authority; (b) the inquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii)go into the proportionality of punishment unless it shocks its conscience." 15. It is evident from the aforesaid judgment that the law has been laid down that in which circumstances, the power of judicial review is to be exercised and in which circumstances, it is not to be exercised. 16. Further, it also requires to refer herein the judicial pronouncement of the Hon’ble Apex Court wherein the Hon’ble Apex Court has observed that the employees working in the financial institutions like the bank are supposed to perform their duty with utmost sincerity and integrity and they are to be treated differently to the other civil servants on the ground that they are dealing with the public money. Reference in this regard be made to the judgment rendered in Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar, [ (2003) 4 SCC 364 , which reads as hereunder: “14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik [ (1996) 9 SCC 69 : 1996 SCC (L&S) 1194] it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.” Further, the Hon’ble Apex Court in the judgment rendered in State Bank of India & Ors Vs. S.N. Goyal [ (2008) 8 SCC 92 ] has been pleased to hold at paragraph 41 as under: “41. At the relevant point of time the respondent was functioning as a Branch Manager. A bank survives on the trust of its clientele and constituents. The position of the Manager of a bank is a matter of great trust. The employees of the bank in particular the Manager are expected to act with absolute integrity and honesty in handling the funds of the customers/borrowers of the bank. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment. When a borrower makes any payment towards a loan, the Manager of the bank receiving such amount is required to credit it immediately to the borrower's account. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment. When a borrower makes any payment towards a loan, the Manager of the bank receiving such amount is required to credit it immediately to the borrower's account. If the matter is to be viewed lightly or leniently it will encourage other bank employees to indulge in such activities thereby undermining the entire banking system. The request for reducing the punishment is misconceived and rejected.” Further, in the case of Union of India & Ors vs. M Duraisamy reported in (2022) 7 SCC 475 wherein at paragraph the Hon’ble Apex Court has been pleased to hold that there cannot be any leniency and undue sympathy in the matter of punishment awarded to the bankers. For ready reference paragraph 15 and 17 of the judgment reads as under: “15. Merely because the respondent employee had worked for 39 years and in those years, there was no punishment imposed and/or that he voluntarily deposited the defrauded amount along with penal interest and therefore there was no loss to the Government/Department cannot be a ground to interfere with the order of punishment imposed by the disciplinary authority and substitute the same from removal to that of compulsory retirement. Neither the Tribunal nor the High Court have, in fact, considered the nature and gravity of the misconduct committed by the delinquent officer. Therefore, both, the Tribunal as well as the High Court had exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the disciplinary authority. 17. Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee. What about the loss caused to the department by way of goodwill, name and fame of the department and its reliability amongst the public? By such a misconduct/act on the part of the delinquent officer, the reputation of the department had been tarnished. What about the loss caused to the department by way of goodwill, name and fame of the department and its reliability amongst the public? By such a misconduct/act on the part of the delinquent officer, the reputation of the department had been tarnished. Therefore, in the facts and circumstances of the case, both, the Tribunal as well as the High Court have exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the disciplinary authority and to substitute the same to that of compulsory retirement.” 17. It is, thus, evident that the service rendered by the civilian and the bankers are on two different pedestals as the bankers are to discharge their duty with utmost sincerity. A bank survives on the trust of its clientele and constituents. The position of the Manager of a bank is a matter of great trust. The employees of the bank in particular the Manager are expected to act with absolute integrity and honesty in handling the funds of the customers/borrowers of the bank. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment. 18. Now, coming to the facts of the present case, the writ petitioner has been granted due opportunity to defend before the enquiry officer. The enquiry officer has found the charge proved based upon the documentary evident as also the rival submission having been recorded in course of the enquiry of the different witnesses. The writ petitioner has not raised the issue of violation of principles of natural justice rather it is evident from the material available on record, particularly the enquiry report, that the writ petitioner has been granted adequate and sufficient opportunity. The enquiry officer has found the charge proved and the disciplinary authority has accepted the finding recorded by the enquiry officer, which led the disciplinary authority to impose the punishment of dismissal from service. 19. The learned Single Judge has taken into consideration the nature of allegation as also the nature of duty which was to be performed by the writ petitioner, i.e., in the capacity of Clerk-cum-Cashier, who has been found to be involved in defrauding the public money by manipulating in the computer entry. 19. The learned Single Judge has taken into consideration the nature of allegation as also the nature of duty which was to be performed by the writ petitioner, i.e., in the capacity of Clerk-cum-Cashier, who has been found to be involved in defrauding the public money by manipulating in the computer entry. The respondent-Bank, in such circumstances, has lost the confidence upon the writ petitioner since the nature of allegation committed by the writ petitioner having been found to be proved by the enquiry officer and in view thereof, the learned Single Judge has refused to interfere with the order impugned. Conclusion: 20. This Court has already referred the judgments rendered by the Hon'ble Apex Court hereinabove showing the power of judicial review in the matter to show interference with the impugned decision of the administrative disciplinary authority. 21. This Court, after considering the aforesaid proposition of law and considering the nature of allegation having been found to be proved by the enquiry officer and further the writ petitioner was working as Clerk-cum-Cashier under the respondent-Bank, hence, if the learned Single Judge on the aforesaid pretext, has taken the view of not interfering with the impugned order of dismissal having been affirmed by the appellate authority, the same, according to our considered view, cannot be said to suffer from error. 22. Accordingly, the instant appeal fails and stands dismissed. 23. Pending interlocutory application(s), if any, also stands disposed of.