Gauhati High Court
WP(C)/3987/2023 on 24 November, 2025
GAHC010152842023
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT
WP(C) No. 3987/2023
Shri Gautam Roy,
S/o Late Gayenendra Roy,
Resident of Ward No.7, College Road,
PO & Dist.-Kokrajhar (BTR),
Assam, Pin-783370.
......Petitioner.
-Versus-
1. Indian Bank,
Represented by the Managing Director & CEO,
Corporate Office 254-260, Avvai Shanmugham Salai,
Royapettah, Chennai-600014.
2. The General Manager (HR),
Corporate Office 254-260, Avvai Shanmugham Salai,
Royapettah, Chennai-600014.
3. The Zonal Manager,
Indian Bank, Zonal Office,
Chiring Chapori, T.R. Phukan Road,
Dibrugarh-787001, Assam.
4. Branch Manager,
Indian Bank, North Lakhimpur Branch,
N.T. Road, North Lakhimpur, PO-North Lakhimpur,
Rajib Digitally signed
by Rajib Kumar
Kumar Roy
Date: 2025.11.25
Dist.-Lakhimpur, Assam.
Roy 16:58:52 +05'30'
......Respondents.
For the Petitioner : Mr. S. Chakraborty. ......Advocate.
For the Respondents : Mr. M. Sharma. ......Advocate.
WP(C) 3987/2023 Page 1 of 47
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing :- 13.11.2025
Date on which judgment is reserved :- 13.11.2025
Date of pronouncement of judgment :- 24.11.2025
Whether the pronouncement is of :- N/A
the operative part of the judgment?
Whether the full judgment has been :- Yes
pronounced?
JUDGMENT AND ORDER (CAV)
Heard Mr. S. Chakraborty, learned counsel for the petitioner
and also heard Mr. M. Sharma, learned counsel appearing for the
respondents.
2. This writ proceeding, under Article 226 of the Constitution of
India, is instituted by Shri Gautam Roy with the following prayers:-
(i) For setting aside and quashing the Enquiry Report dated
28.07.2022 [Annexure-7] and the impugned order of
punishment, dated 17.10.2022 [Annexure- 8];
WP(C) 3987/2023 Page 2 of 47
(ii) For setting aside and quashing the order dated
10.05.2023, passed by the Appellate Authority
[Annexure-10];
(iii) For issuing direction to the respondent Bank to reinstate
the petitioner with all consequential benefits including
back wages.
Background Facts:-
3. The background facts, leading to filing of the present petition
are briefly stated as under:-
"The petitioner had initially joined Allahabad Bank,
Titaguri Branch as part time sweeper (PTS) in the year 1987.
Thereafter, on 01.12.2001, he was brought under the Pay Roll
of the Bank in the same Branch as part time sweeper on 1/3
scale of sub staff in permanent capacity. On successfully
clearing the departmental test conducted by the Bank for the
post of clerk, he was promoted and appointed as Single
Window Operator, vide order dated 10.03.2010, and posted at
Gamerimura Branch, Boko and he joined on 22.03.2010, in
terms of the order of appointment, dated 10.03.2010.
Thereafter, he was promoted to the post of Head Cashier and
joined his duties at North Lakhimpur Branch on 20.03.2012. In
the year 2013, he was made Special Assistant and he
continued to perform his duties in the same Branch.
Thereafter, Allahabad Bank was merged with Indian Bank vide
Government of India Gazette Notification No. 133 (GSR-156 E)
WP(C) 3987/2023 Page 3 of 47
dated 04.03.2020 and since then, the petitioner became an
employee of Indian Bank.
While serving as Special Assistant at North Lakhimpur
Branch, the petitioner was placed under suspension, vide
order dated 22.11.2021, issued by the Assistant General
Manager, Zonal Office, Dibrugarh. Thereafter, the Zonal
Manager had issued show cause notice, dated 08.12.2021, to
him stating inter-alia, that while he was discharging duties in
the cash counter, he did not deposit customer's money to their
accounts on the date of receipt of the deposits received from
the customers and thereby misappropriated a sum of Rs.
8,69,430/- in 105 numbers of accounts as per the list
enclosed. It was further alleged that after the matter of
misappropriation of cash was highlighted, he committed
fraudulent activity by crediting money in 105 numbers of
accounts on 10.11.2021 and 18.11.2021, for total amount of
Rs. 8,69,430/- by writing deposits slips on his own.
The petitioner then submitted his reply on 07.01.2022,
denying the allegation leveled against him as no complaint
was received by the bank, and as such the allegation of
misappropriation is not correct. He also denied the fact of
writing the deposit slips.
Thereafter, the petitioner was served with a Charge
Sheet, dated 03.03.2022, by the Assistant General Manager &
Disciplinary Authority, Indian Bank, Zonal Office, Dibrugarh on
WP(C) 3987/2023 Page 4 of 47
the same allegation. It is also stated in the Charge Sheet that
the acts of the petitioner amounted to act of gross negligence
or negligence involving or likely to involve the bank in serious
loss i.e. a gross misconduct under clause 5(j) of the
Memorandum of Settlement on Disciplinary Action and
Procedure, dated 10.04.2002, amended from time to time.
The petitioner then submitted his reply on 01.04.2022,
denying the allegations and pointed out that in respect of cash
deposit in the Branch in a given day, a scroll number is
provided to the customer in the deposit slip by entering in a
register the details of the name of the customer, account
number, type of account and the amount to be deposited and
thereafter, the deposit slip is tendered in the cash counter by
the customer for depositing the money. After the end of the
transaction hours in the branch, the total cash received from
the customers in different accounts are tallied with the scroll
register and any shortfall is easily detected. The Branch
Manager at that time had never raised any question of any
shortfall in cash. It was further pointed out that the
customers/ account holders of the Bank would have lodged
complaint against him for not depositing money in their
respective accounts timely after receiving cash from them as
they could get to know immediately from the system
generated alert, which is communicated to the account holder
for every transaction in the account. He also denied the fact of
writing the deposit slips.
WP(C) 3987/2023 Page 5 of 47
Then a regular departmental enquiry was initiated
against the petitioner by the Bank, by appointing Inquiry
Officer and Presenting Officer. The petitioner had participated
in the enquiry. In the enquiry, the Bank had examined only
one witness i.e. the present Branch Manager, who at the
relevant point of time was not posted in the Branch. Not a
single customer, whose money was alleged to be
misappropriated by the petitioner, was examined in the
enquiry. The scroll register was not produced in the enquiry.
No opinion of handwriting expert was obtained. The Bank
proceeded with the enquiry taking a stand that oral complaints
were received from the customers, but neither the names of
the customers were disclosed in the enquiry, nor they were
examined in the enquiry thereby denying the petitioner of his
valuable right to cross examine the persons. The enquiry was
held in violation of the principles of natural justice and the
procedure established by law and as such, the same cannot be
termed as fair enquiry. It is also stated that the Enquiry Officer
played a partitioned role in the enquiry and to negate the
cross examination of MW-1, permitted the Presenting Officer
to re- examine MW-1, when request for such re-examination
was not even made by the Presenting Officer. No opportunity
was given to the petitioner to cross-examine the witness after
his re-examination.
The Enquiry Officer, on conclusion of enquiry,
submitted his report before the Disciplinary Authority on
WP(C) 3987/2023 Page 6 of 47
28.07.2022, holding the petitioner guilty of the charges leveled
against him. It is the contention of the petitioner that the
report is perverse as the findings are based on consideration
of irrelevant materials and ignoring relevant materials &
evidence on record. The Enquiry Officer has also proceeded on
assumption to record his findings and as such, the finding of
enquiry is bad in law.
The report of the Enquiry Officer was, thereafter,
forwarded to the petitioner by the Assistant General Manager
& Disciplinary Authority vide his communication dated
16.08.2022, for submission of representation against the
findings recorded in the enquiry report. The petitioner then
submitted his representation, dated 02.09.2022, before the
Disciplinary Authority, against the findings of the Enquiry
Officer, wherein it was pointed out that the Enquiry Officer,
while recording his findings had taken into account certain
facts which did not form part of the materials on record, as
well as ignored vital relevant facts available on record. It was
also pointed out that the finding is based on some verbal
complaints of customers about which nothing was mentioned
in the Charge Sheet and the customers were neither examined
in the enquiry nor their identity were disclosed in the enquiry
thereby depriving him from the opportunity of cross examining
them resulting in violation of the principles of natural justice.
WP(C) 3987/2023 Page 7 of 47
But, the Disciplinary Authority did not consider the
issues, so pointed out by the petitioner and agreed with the
findings of the Enquiry Officer and vide order, dated
17.10.2022 (Annexure-8), imposed the penalty of "compulsory
retirement, with superannuation benefits, i.e. pension and/or
provident fund and gratuity as would be due otherwise under
the rules and regulations prevailing at the relevant time and
without disqualification from future employment" in terms of
Clause 6(c) of Memorandum of Settlement on Disciplinary
Action and Procedure, dated 10.04.2002, as amended time to
time, directing further that the period of suspension
undergone by him will be treated as one on suspension [Non
duty] only.
Then being highly aggrieved and dissatisfied with the
penalty imposed by the Disciplinary Authority vide order dated
17.10.2022, the petitioner had preferred an appeal on
08.12.2022, under Clause 14 of the Bi-partite Settlement
dated 01.04.2002. However, till date the petitioner is not
aware of the outcome of the appeal which is pending for
disposal.
Being aggrieved, the petitioner had approached this
Court by filing a writ petition, being WP(C) No. 2579/2023.
Then on 12.05.2023, this Court had directed the counsel
representing the Bank to obtain instruction regarding the
outcome of the appeal and then on 22.05.2023, the counsel of
WP(C) 3987/2023 Page 8 of 47
the Bank placed an order dated 10.05.2023, passed by the
Appellate Authority rejecting the appeal of the petitioner and a
copy of the same was furnished to the counsel of the
petitioner. In view of the order dated 10.05.2023, passed by
the Bank, the earlier writ petition was withdrawn by the
petitioner with liberty to file a fresh writ petition and the same
was granted.
Then the petitioner has approached this Court by filing
the present petition seeking the relief aforesaid."
4. The respondent authorities had filed their affidavit in
opposition wherein they denies each and every allegation contained
in the WP(C) No.3987/2023. It had raised the issue of the very
maintainability of the instant writ petition, as the petitioner's
fundamental rights have not been infringed by the respondent‟s
bank and as such, the present petition under Article 226 of the
Constitution of India is not maintainable and is liable to be
dismissed.
Under the heading of the true facts of the case, it is stated
that as serious act of omission or commission had been reported
against the petitioner, while he was working as Special Assistant at
North Lakhimpur Branch and pending investigation/ enquiry in to
the matter, the petitioner was placed under suspension by order
dated 22.11.2021, by the Assistant General Manager, Zonal Office,
Dibrugarh. It is also stated that the petitioner had not deposited
WP(C) 3987/2023 Page 9 of 47
customer's money to their accounts on the date of receipt of the
deposits from them on various dates, while discharging his duty at
the cash counter and thereby misappropriated a sum of
Rs.8,69,430.00 (Eight Lacs Sixty Nine Thousand Four Hundred
Thirty Only) in 105 numbers of accounts. Thereafter, the petitioner
had credited money in the said 105 numbers of accounts on
10.11.2021, and 18.11.2021, for total amount of Rs.8,69,430.00
(Eight Lacs Sixty Nine Thousand Four Hundred Thirty Only) by
writing deposit slips on his own, against the misappropriations
reported over a period of 37 (Thirty Seven) months from
03/08/2018 to 24/09/2021. This has not only breached the trust of
the customers with the Bank, but also resulted in loss of interest for
the depositors. Then the bank conducted an in depth investigation
on 03.12.2021, wherein the Bank found out that one of the
customers on 02.11.2021, has come forward and enquired the bank
regarding the reason for non-crediting his money in his account,
which he had deposited on a previous date. Then the Branch
Manager called upon the petitioner to explain the reason for non-
deposit of such money, on receipt of such verbal complaint. As a
result of such enquiry, the petitioner credited the requisite amount
into the customer's account. This incident has created suspicion in
the mind of the Branch Manager and he called the petitioner to
enquire whether more such cases are present and after lot of
counseling, the petitioner admitted to have committed such
misdeeds in other accounts too, on account of some personal
problems. The Branch Manager then asked the petitioner to furnish
WP(C) 3987/2023 Page 10 of 47
a complete list of accounts where misappropriation has been done
and the list includes 105 numbers of names and account numbers of
various customers, along with the original deposit vouchers which
the petitioner had preserved in his handbag since 2018.
The modus operandi used by petitioner was that whenever
any customer used to enquire regarding non deposit of money into
their accounts, the petitioner immediately used to deposit the same
into customer's account citing that there was link failure on the date
of deposit. Hence, the Branch Manager or other staff did not receive
any complaint from the customer. The petitioner also maintained a
register of the accounts where he had misappropriated the amounts
and also preserved all the original deposit slips. The bank had also
enquired 3 other customers whose name were in the list provided
by the petitioner and they all were ignorant about any such thing
due to the modus operandi adopted by the petitioner.
Thereafter, the Zonal Manager of Dibrugarh sought
explanation from the petitioner, vide its letter dated 08.12.2021,
regarding the point that while he was discharging duties in the cash
counter, he did not deposit customer's money to their accounts on
the date of receipt of the deposits received from the customer and
thereby misappropriated a sum of Rs. 8,69,430.00 in 105 numbers
of accounts. The petitioner replied to the above queries of the Zonal
Manager on 07.01.2022, thereby denying the allegation of
misappropriation of money stating that the bank has not received
any complaint from the customer.
WP(C) 3987/2023 Page 11 of 47
The petitioner was then served with a Charge Sheet, dated
03.03.2022, issued by the Assistant General Manager & Disciplinary
Authority, Indian Bank, Zonal Office, Dibrugarh stating that the
petitioner while discharging his duties in the cash counter did not
deposit customer's money to their accounts on the date of receipt of
the deposits from the customers and thereby misappropriated a sum
of Rs. 8,69,430.00 in 105 numbers of accounts. The Charge Sheet
also stated that the acts of the petitioner amounted to act of gross
negligence or negligence involving or likely to involve the bank in
serious loss i.e. a gross misconduct under Clause (j) of the
Memorandum of Settlement on Disciplinary Action and Procedure
dated 10.04.2002. The petitioner replied to the above charge sheet,
vide his letter dated 01.04.2022, denying the allegation on baseless
and false ground.
Then a departmental enquiry was conducted and the Enquiry
Officer, on conclusion of enquiry, submitted its report before the
Disciplinary Authority on 28.07.2022, holding the petitioner guilty of
all the charges leveled against him. The petitioner submitted his
representation dated 02.09.2022, before the Disciplinary Authority
against the findings of the Enquiry Officer stating that the same was
conducted in violation of natural justice.
However, the Disciplinary Authority did not consider the issues
pointed out by the petitioner and agreed with the findings of the
Enquiry Officer and vide order dated 17.10.2022, imposed the
penalty of "Compulsory Retirement, with superannuation benefits,
WP(C) 3987/2023 Page 12 of 47
i.e. pension and/or provident fund and gratuity as would be due
otherwise under the rules and regulations prevailing at the relevant
time and without disqualification from future employment" in terms
of Clause 6(c) of Memorandum of Settlement- Disciplinary Action
and Procedure thereof dated 10.04.2002, as amended from time to
time.
The petitioner being dissatisfied with the penalty imposed by
the Disciplinary Authority, vide order dated 17.10.2022, preferred an
appeal on 08.12.2022, under Clause 14 of the Bi-partite Settlement
dated 01.04.2002. The Appellate Authority had rejected the appeal
vide order dated 10.05.2023, considering all the facts and
circumstances.
It is stated that no irregularity or illegality have been
committed by the respondent bank in imposing the punishment of
compulsory retirement upon the petitioner. The respondent bank
fully complied with the principles of natural justice, before imposing
the punishment on the petitioner. It is further stated that bank
employee have a larger responsibility of ensuring the banking
system's integrity as well as maintaining the trust of the customers,
they should discharge their duties faithfully, honestly, sincerely, and
without any corruption or any misrepresentation to the bank
authority. Due to the action on the part of the petitioner, the
respondent banks have lost confidence on him due to misconduct.
The petitioner had misappropriated a sum of Rs.8,69,430/- who was
the custodian of the fund of the bank. If the custodian
WP(C) 3987/2023 Page 13 of 47
misappropriated the amount, it is not possible for any management
on their part to excuse such employees and the petitioner was
compulsory retired from service after complying with the principles
of natural justice.
Submissions:-
5. Mr. Chakraborty, learned counsel for the petitioner has
launched scathing attack upon the impugned enquiry report on
various counts. Firstly, he submits that the report is bias and one
sided report. He has pointed out that the witness examined by
Presenting Officer had deposed that the management had received
verbal complaint, upon which the proceeding was initiated against
the petitioner, but this fact had not been mentioned in the charge-
sheet and despite he allowed the witness to introduce such new fact
at the time of deposition, and moreover, what was the verbal
complaint has not been placed on record and the person who made
verbal complaint had not been examined as witness. He also
submits that the Presenting Officer had not produced and exhibited
the same during the enquiry proceeding to substantiate depositing
of money by customers in their account. However, the evidence of
MW-1, in respect of the verbal complaint, has been used by the
Enquiry Authority in his report. Further, he submits that there was
also no material to suggest that money, if any, was deposited by the
customers, was not deposited in their accounts. Secondly, Mr.
Chakraborty, drawing the attention of this Court to the record of
disciplinary proceeding, submits that the petitioner was not allowed
to cross-examine the MW-1, after closing the re-examination by the
WP(C) 3987/2023 Page 14 of 47
Presenting Officer and as such, the principles of natural justice is
violated herein this case, and on this count alone, the impugned
report is liable to be interfered with. Thirdly, Mr. Chakraborty has
pointed out that in his reply to the finding recorded by the Enquiry
Officer, the petitioner had raised several contentions, but no reason
has been assigned by the Disciplinary Authority in negating the said
contentions and the appeal filed by the petitioner before the
appellate authority was also dismissed mechanically and no reason
has been assigned and in view of the decision of Hon‟ble Supreme
Court in the case of Allahabad Bank and Others vs. Krishna
Narayan Tewari, reported in (2017) 2 SCC 308, the impugned
order of punishment is liable to be interfered with. Fourthly, Mr.
Chakraborty has pointed out that the investigation report, upon
which the appellate authority had relied upon, was not placed on
record. Fifthly, Mr. Chakraborty submits that the cash deposit
vouchers, which the disciplinary authority had relied upon, is not
sufficient to establish the charge nor is the alleged confession made
by the petitioner, sufficient to establish the charge. Under such
circumstances, Mr. Chakraborty has contended to set aside the
impugned order of imposing punishment upon the petitioner and to
direct the respondent authorities to reinstate him with all back
wages.
6. Per contra, Mr. Sharma, the learned counsel for the
respondents, has supported the enquiry report and the impugned
orders of the Disciplinary Authority and Appellate Authority. Mr.
Sharma submits that the petitioner, in his own hand writing had
WP(C) 3987/2023 Page 15 of 47
written letter to the Branch Manager, confessing the charges leveled
against him on 06.11.2021 and the same had been exhibited as
Annexure-B at page No.171, that he had received the amount but,
not deposited in the respective accounts of the customers. He also
submits that the petitioner had not disputed his signature over the
said documents and as such, the burden shifted to him to establish
that the same were taken forcefully by the Branch Manager. Mr.
Sharma, has also produced 105 numbers of the original deposit
vouchers and the Enquiry Proceeding before the Court and submits
that the same established the charges leveled against him. Mr.
Sharma also submits that at the relevant time, scroll register was
not maintained by the Bank. Mr. Sharma has also drawn the
attention of this Court to M. Exhibit-4 and 5, the apology letters
wherein, the petitioner had admitted the charges. Under the
aforesaid facts and circumstances, Mr. Sharma has contended to
dismiss this petition.
7. In his reply to the aforesaid submission of Mr. Sharma, Mr.
Chakraborty, learned counsel for the petitioner submits that the
enquiry report is vitiated as the Enquiring Authority had arrived at a
finding without there being any evidence. He also submits that
account statement of the depositors have not been produced and
exhibited during enquiry. And on this count also, the report is not
sustainable. Referring to a decision of Hon‟ble Supreme Court in the
case of Roop Singh Negi vs. Punjab National Bank, reported
in (2009) 2 SCC 570, Mr. Chakraborty submits that the alleged
WP(C) 3987/2023 Page 16 of 47
confession made by the petitioner has also not been proved and
there should have been some evidence to support the same.
8. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the petition and the documents
placed on record and the Enquiry Report, the order of the Disciplinary
Authority imposing the punishment upon the petitioner and the order of
the Appellate Authority and also perused the decisions referred by Mr.
Chakraborty, the learned counsel for the petitioner.
9. The basic facts here in this case are not in dispute. While the
petitioner was working as Special Assistant at North Lakhimpur
Branch, he was placed under suspension vide order dated
22.11.2021, on account of failing to depositing the customer's
money in their accounts on the date of receipt of the same from
them, on various dates, and thereby misappropriating a sum of Rs.
8,69,430.00 (Eight Lacs Sixty Nine Thousand Four Hundred Thirty
Only) in 105 numbers of accounts, and also on account of crediting
the said money in 105 numbers of accounts, on 10.11.2021 and
18.11.2021, for total amount of Rs. 8,69,430.00 (Eight Lacs Sixty
Nine Thousand Four Hundred Thirty Only) by writing deposit slips on
his own.
9.1 Thereafter, an explanation was sought for, from the petitioner,
vide its letter dated 08.12.2021, and the petitioner had replied to
the on 07.01.2022, denying the allegation of misappropriation of
money. Then the petitioner was served with a Charge Sheet, dated
03.03.2022, issued by the Assistant General Manager & Disciplinary
Authority, Indian Bank, Zonal Office, Dibrugarh. The petitioner had
WP(C) 3987/2023 Page 17 of 47
replied to the above charge sheet, vide its letter dated 01.04.2022,
denying the allegation on baseless and false ground.
9.2 Then a departmental enquiry was conducted and the
Enquiring Authority had submitted its report before the Disciplinary
Authority on 28.07.2022, holding the petitioner guilty of all the
charges leveled against him. The petitioner then submitted his
representation, dated 02.09.2022, before the Disciplinary Authority
against the findings of the Enquiring Authority, stating that the
same was conducted in violation of the principles of natural justice.
But, the Disciplinary Authority did not consider the issues pointed
out by the petitioner and agreed with the findings of the Enquiring
Authority and vide impugned order, dated 17.10.2022, imposed the
penalty of compulsory retirement, with superannuation benefits, i.e.
pension and/or provident fund and gratuity as would be due
otherwise under the rules and regulations prevailing at the relevant
time and without disqualification from future employment" in terms
of Clause 6(c) of Memorandum of Settlement- Disciplinary Action
and Procedure thereof dated 10.04.2002, as amended from time to
time.
9.3 The petitioner, being aggrieved with the penalty imposed by
the Disciplinary Authority, vide order dated 17.10.2022, had
preferred an appeal on 08.12.2022, under Clause 14 of the Bi-
partite Settlement dated 01.04.2002. The Appellate Authority then
rejected the appeal vide order, dated 10.05.2023. And now, the
petitioner is before this Court by filing the present petition.
WP(C) 3987/2023 Page 18 of 47
10. It also appears that the respondent authority had framed
following two charges against the petitioner:-
Charge No.I.
"You have been alleged for not depositing
customer's money to their accounts on the date of
receipts of the deposits from them on various
dates while discharging your duty at the cash
counter and there by misappropriating a sum of Rs.
8,69,430.00 (Eight Lacs Sixty Nine Thousand Four
Hundred Thirty Only) in 105 numbers of accounts as
per the list enclosed:-
DATE OF
Sl. ACCOUNT DEPOSIT
NAME TYPE ACTUAL AMOUNT
No. NO. DATE
VOUCHER
1 BANUMITA GOGOI 50420684343 SB CHQ GEN 03.08,2018 4000.00 10.11.2021
2 JAS GOT 5034943078 INVALID 08,02,2019 500.00 10.11.2021
3 JOONBAI SHG 50027003769 SBNCHQ-GEN 26.02.2019 1000.00 10.11.2021
_
4 LAKYAIEET DUTTA 50455627011 SBNCHQ-GEN 30.04.2019 200.00 10.11.2021
5 ANSHUMAN SAIKIA 50280932767 SBNCHQ-GEN 20.06.2019 49000.00 10.11.2021
HARIPRASAD
6 20700318053 SB CHQ GEN 26.08.2019 1000.00 10.11.2021
DUTTA
7 FIRM KHAN 20700317548 SB CHQ GEN 27.08.2019 1250.00 10.11.2021
8 RIYAN DUTTA 50462888076 RD 09.09.2019 500.00 10.11.2021
9 DIPOK MONDAL 50393542181 SB CHQ GEN 27.09.2019 40000.00 10.11.2021
10 DURGESWAR SAIKIA 50286831549 SBNCHQ-GEN 30.09.2019 1000.00 10.11.2021
11 DHORITREE DUTTA NO A/C SBNCHQ-GEN 11.10.2019 50.00 18.11.2021
12 SUNDHAR PAYENG 50304914860 SBNCHQ-GEN 12.10.2019 2000.00 10.11.2021
13 JYOTI SAH 50051231899 SBNCHQ-GEN 06.11.2019 500.00 10.11.2021
14 AMU SINGH SAH 50078252634 INVALID 06.11.2019 500.00 10.11.2021
IB SB-
15 JODURAM DAS 59163989227 28.11.2019 200.00 10.11.2021
FHHANDHAN
16 BINTI DEW 5046160475 INVALID 05.12.2019 1000,00 10.11,2021
17 PRABHAT KR SINGH 20700338830 SBCHQ-GEN 17.12.2019 6000.00 10.11.2021
113 SB-FI-
18 AJAY KUMAR DAS 59162169181 23.12.2019 3000.00 10.11.2021
JHANDHAN
19 SABITA KUNDU 50020890520 SBCHQ-GEN 02.01.2020 1000.00 10.11.2021
20 RIKUMONI DAS 50420979743 SBNCHQ-GEN 02.01.2020 5500.00 10.11.2021
21 MANIU DEVI JAIN 20700334176 SBCHQ-GEN 03.01.2020 1000.00 10.11.2021
AEHYUT KRISHNA
22 50399024934 SBNCHQ-GEN 04.01.2020 1000.00 10.11.2021
GOGOI
23 BRAJEN SAIK1A NO A/C 07.01.2020 7200.00 18.11.2021
24 DIPIKA HAZARIKA 50364559031 SBNCHQ-GEN 13.01.2020 7000.00 10.11.2021
25 BENU DEY NO A/C 30.01.2020 1000,00 18,11.2021
26 DIP1KA HAZARIKA 50364559031 SBNCHQ-GEN 10.02.2020 3000.00 10.11.2021
27 KACHIM ALI 50417593028 INVALID 10.02.2020 20000.00 10.11.2021
28 BORSHA 50391350489 SBNCHQ-GEN 10.02.2020 500.00 10.11.2021
WP(C) 3987/2023 Page 19 of 47
DATE OF
Sl. ACCOUNT DEPOSIT
NAME TYPE ACTUAL AMOUNT
No. NO. DATE
VOUCHER
JANAKALYAN SHG
-
29 BIDYAWATI SAIKIA 50403345695 14.02.2020 500.00 10.11.2021 SBNCHQ-GEN RAM DHAWEL 30 20700309490 SBNCHQ-GEN 02.03.2020 1000.00 10.11.2021 PRASAD 31 RAM PRASAD 20700309490 SBNCHQ-GEN 02.03.2020 1000.00 10.11.2021 32 LOKNATH WATCH 50476381718 CC 04.03.2020 2000.00 10.11.2021 SERVICE 33 RAKHI KUMAR! 50035552290 SBNCHQ-GEN 04.03,2020 1000.00 10.11.2021 34 KABERI DAS 50236006149 SBNCHQ-GEN 05.032020 500.00 10.11.2021 35 ANIL PEGU 50344403687 SBNCHQ-GEN 06.03.2020 500.00 10.11.2021 36 TAJMIN SULTANA 59028715614 SENCHQ-GEN 07.03.2020 3500.00 10.11.2021 AKI-ITER 37 GOSAI CHAPARI 20700338239 SBCHQ-GEN 21.03.2020 6500.00 10.11.2021 KALYANI MOHILA SHG SYEDA HASHINA 38 NO A/C 03.04.2020 2000.00 18.11.2021 BEGUM 39 HAZARA BEGUM 20700338228 SBCHQ-GEN 04.05.2020 600.00 10.11.2021 KHATUN BIPUL CHANDRA 40 50299776002 SBNCHQ-GEN 05.05.2020 9200.00 10.11.2021 DUTTA 41 ELLURA SHG 20700353462 SBNCHQ-GEN 13.05.2020 13470.00 10.11.2021 42 BIJAN KUMAR PAUL 50010031999 SBCHQ-GEN 06.06.2020 8000.00 10.11.2021 43 NASIMA BEGUM 20700340191 SBNCHQ-GEN 08.06.2020 8000.00 10.11,2021 44 ROBIN PANGING 50446854272 SBNCHQ-GEN 08.06.2020 2500.00 10.11.2021 45 RANU DUTTA 50032219207 SBNCHQ-GEN 09.06.2020 2000.00 10.11.2021 46 CHANDRA KR. 20700320243 SBCHQ-GEN 25.06.2020 8000.00 10.11.2021 CHAKRABORTY 47 TILESWAR KAISO 50429153540 SBCHQ-GEN 29.06.2020 4000.00 10.11.2021 48 SUNANDA BIWAS 50075842835 SBNCHQ-GEN 30.06.2020 34000.00 10.11.2021 49 MENU DAS 50494481868 SBCHQ-IB 30.06.2020 5000.00 10.11,2021 50 MAYURI 50352785575 SBNCHQ-GEN 07.07.2020 1950.00 10.11.2021 ATMASAHAYAK GUT BIPUL CHANDRA 51 50299776002 SBNCHQ-GEN 08.07.2020 9200,00 10.11.2021 DUTTA 52 MAYURI 50352785575 SBNCHQ-GEN 11.07.2020 5990.00 10.11.2021 ATMASAHAYAK GUT 53 NASIMA BEGUM 20700340191 SBNCHQ-GEN 20.07.2020 15000.00 10.11.2021 54 SONU TAMULI 50483682161 SBNCHQ-GEN 20.07.2020 2500.00 10.11.2021 SIV SANICAR 55 59017583269 SBCHQ-GEN 20.07.2020 1000.00 10.11.2021 MAHATA 56 ELLURA SHG 20700353462 SBNCHQ-GEN 20.07.2020 5600.00 10.11.2021 RBD-OCC-NRLM 57 ELLURA SHG 50517055871 20.07.2020 10000.00 10.11.2021 SHG 58 2 NO GHARMARA 20700339719 SBNCHQ-GEN 21.07.2020 3500.00 10.11.2021 RANGDHALI SHG 59 AICHA BEGUM 50393512940 SBNCHQ-GEN 22.07.2020 2000.00 10,11.2021 60 PREM DHAN BIWAS 50162039485 SBNCHQ-GEN 23.07.2020 9000.00 10.11.2021 61 JALAN BARIK 20700339594 SBCHQ-GEN 24.07.2020 40000.00 10.11.2021 1B SB-FI-
62 GIRIN GOHAIN 59108397532 24.07.2020 69000.00 10.11.2021 JHANDHAN 63 BARUN PHUKAN 20700319997 SBCHQ-GEN 27.07.2020 11000.00 10.11.2021 RATNESWAR 64 50026279548 SBNCHQ-GEN 18.08.2020 2000.00 10,11,2021 KONWAR NIJU BORGOHAIN 65 20700355765 SBNCHQ-GEN 19.08.2020 10000,00 10.11.2021 MILI 66 BARAKHA HAZARIKA 50115905077 SBNCHQ-GEN 24.08.2020 10000.00 10.11.2021 WP(C) 3987/2023 Page 20 of 47 DATE OF Sl. ACCOUNT DEPOSIT NAME TYPE ACTUAL AMOUNT No. NO. DATE VOUCHER 67 MINA DEVI 50201124562 SBCHQ-GEN 30.09.2020 30000.00 10.11.2021 68 ELLURA SHG 20700353462 SBNCHQ-GEN 13.10.2020 4200.00 10.11.2021 69 DAVID REDDY 20700341967 SBNCHQ-GEN 19.10.2020 23000.00 18.11.2021 IB SB-FI-
70 KRISHNA DAS 59087157624 31.10.2020 2500.00 10.11.2021 JHANDHAN 71 FULMALA BEGUM 50363111547 SBNCHQ-GEN 03.11.2020 30000.00 10.11.2021 IB SB-FI-
72 PRIYA LAHAN 59132154793 03.11.2020 15600.00 18.11.2021 JHANDHAN 73 MONISHA BAU 50067389291 SBCHQ-GEN 05.11.2020 10000,00 10.11.2021 74 PRABHAT BORA 20700327895 SBCHQ-GEN 05.11.2020 20000.00 10.11.2021 75 DHAN MAYA LAMBU 50324477371 SBNCHQ-GEN 07,11.2020 500.00 18.11,2021 76 DHAN MAYA LAMBU 50324477371 SBNCHQ-GEN 09.11,2020 2000.00 18.112021 77 JUGADA BARUAH 50188242818 SBNCHQ-GEN 12.11.2020 20000.00 10.11.2021 78 ELLURA SHG 20700353462 SBNCHQ-GEN 13.11.2020 5220.00 10.11.2021 79 RASHMI LIMBU 50212596226 SBNCHQ-GEN 16.11.2020 10000.00 10.11.2021 IB SB-FI-
80 HIMA HAZARIKA 59115073096 17.11.2020 500.00 18.11.2021 JHANDHAN 81 SABDUL ALI 59018900186 SBNCHQ-GEN 21.11.2020 10000.00 10.11.2021 82 RUPJYOTI SHG 50384003727 SBNCHQ-GEN 21.11.2020 1500.00 10.11.2021 83 DIPALI 50110739261 SBNCHQ-GEN 23.11,2020 2000.00 10.112021 84 DIPIICA HAZARIKA 50364559031 SBNCHQ-GEN 24.11,2020 3000.00 10.11.2021 SHRUTIMOY8E 85 50243138837 SBNCHQ-GEN 27.11,2020 5000.00 10.112021 BORAH 86 BIDYAWATI SAIKIA 50403345695 SBNCHQ-GEN 10.12.2020 500.00 10.11.2021 87 SURNANDRA SHAH 50051012196 SBNCHQ-GEN 22.12.2020 500.00 10,11.2021 88 MANJU DEVI 50321874406 SBNCHQ-GEN 06.02.2021 24000.00 10.11.2021 89 ABDUL KALAM 50157931165 SBNCHQ-GEN 12.02.2021 13000.00 10.11.2021 90 MINU BORA DUTTA 50382109680 INVALID 20.02.2021 1000.00 10.11.2021 91 HANUFA BEGUM 50277721037 INVALID 03.03.2021 4000.00 10.11.2021 92 MIRA DUTTA 20700347415 SBCHQ-GEN 12.04.2021 15000.00 10.11.2021 93 ANUP KUMAR DUTTA 50231112030 SBCHQ-GBN 12.04.2021 12000.00 10.11.2021 94 MANJU MALA 50494852030 SBNCHQ-GEN 12.04.2021 5000.00 10.11.2021 95 NO NAME (NAREN 20700316486 SBCHQ-GEN 12.04.2021 10000.00 18.11.2021 DUTTA) RBD-OCC-NRLM 96 RUPJYOTI SHG 6994255137 22.04.2021 10000.00 10.11.2021 SHG 97 INDIRA GOGOI 20700334760 INVALID 29.06.2021 5000.00 18,11.2021 1B SB-FI-
98 HITESWAR TAID 59158664330 04.09.2021 8000,00 10.11.2021 JHANDHAN 99 DULUMONI DAS 59021423492 SBNCHQ-GEN 04,09,2021 2500.00 10.11.2021 100 RAKHI ROY 50110895506 SBNCHQ-GEN 06.09.2021 10000.00 10.11.2021 101 JAMINEE DAS 50477921119 Rural TL- 09.09.2021 11000.00 10.11.2021 Commercial Dairy 102 REKIBUDDIN AHMED 50461447134 MUDRA-TERM 09.09.2021 20000.00 10.11.2021 LOAN- REPO 103 SUDARSHANA 50517135666 SBCHQ-GEN 09.09.2021 28000.00 10.11.2021 GAMYA SONGATHON IB SB-FI-
104 MALAPI MILI 59107495484 10.09.2021 10000.00 10.11.2021
JHANDHAN
105 PHATIC DUTTA 20700311400 SBNCHQ-GEN 24.09.2021 5000.00 10.11.2021
Total 869430/
You have violated Bark's norms while
accepting deposits from customers without
WP(C) 3987/2023 Page 21 of 47
depositing to the respective accounts on various dates and thereby siphoning a huge sum of money over period of time bypassing the systems procedures of the bank, Charge No. II.
"After the matter of misappropriation of cash was highlighted, you have committed fraudulent activity by crediting money in 105 no of accounts on date 10.11.2021 and 18. 11.2021 for total amount of Rs. 8,69,430/-(Eight Lacs Sixty Nine Thousands Four Hundred Thirty Only) by writing deposits slips on your own against the misappropriations reported over a period of 37 (Thirty Seven) months from 03/08/2018 to 24/09/2021. This has not only breached the trust of customers with the Bank but also resulted in loss of interest for depositors. It is observed that your dishonest acts were carried out since 2018.
Your above reported act, if proved will amount to doing any act of gross negligence or negligence involving or likely to involve the bank in serious loss i.e. gross misconduct under clause 5(j) of Memorandum of Settlement on Disciplinary Action and Procedure dated 10.04.2002, amended from time to time and are punishable under para 6 of the said settlement."
11. Findings recorded by the Enquiring Authority on the Charges:-
WP(C) 3987/2023 Page 22 of 47The Enquiring Authority, after considering the documents exhibited and the evidence adduced had recorded following findings:-
"After judiciously going through the arguments of PO & DR and the documents presented before me, it is clear that there were 105 nos. of deposit challan tendered by various customers on various dates, but amount not deposited in respective customers account. At the same time, branch has not received any written complaint from customers about not depositing the amount in their account.
As per DR argument, "in the absence of any complaint of the customers/account holders against the CSE, the allegation leveled by the Bank falls flat on the face of the record." In my opinion, compliant has been received verbally and MW-1 has acted upon that verbal compliant. Hence DR argument about non-receipt of any complaint is not acceptable. As per DR argument, "The fact of receiving money from the customers by the CSE could not be established in the enquiry only from MEX-1 in absence of the pre-scroll register." It is a fact that branch has not maintained pre- scroll register, if so maintained, then the incident might have been avoided. But except few challans as per MEX-1, all other challans are having cash received stamp with receiver's signature and amount tendered by depositor has been written by cash receiver himself. Hence DR argument about this point is not acceptable.
As per DR argument, "The oral statement of MW-1 to the extent that the CSE received cash from WP(C) 3987/2023 Page 23 of 47 the customers cannot be acted upon as the said witness was not posted in the Branch during the relevant period" also not acceptable as the verbal complaint received by MW-1 while he is acting as Branch Manger of a branch and the relevant period may or may not be during his tenure.
During argument, MW-1 informed that he has received verbal complaint about the incident, he has issued letter to CSE to know the detalls of incident. In reply, CSE has given a letter apologizing for not depositing customers' money into their accounts and requested to allow him to deposit the amounts. He also submitted the list of 105 no. of such customers name and account no. The letter issued by MW1 was acknowledged and signed by CSE. Also, in reply letter and list of 105 accounts has also signed by the CSE himself. This fact implies that CSE has acknowledged the incident of non-depositing of cash of various customers.
As such the charge in this article is proved.
11.1 Findings on Charge No II "As per DR argument "the CSE in his statements has categorically stated that none of the vouchers (MEX-2) were written by him and all these vouchers were written by the customers". After going though the MEX-2, if I consider that all the MEX-2 were written by the customers, but except few MEX-2, for all other cases, the customers did not sign as depositor, rather the same were signed by CSE as Depositor. Hence DR argument is not acceptable.WP(C) 3987/2023 Page 24 of 47
As per DR argument "CSE was forced to write the letters i.e. MEX-4 and MEX-5 by the Branch Manager and under pressure and duress he had written those letters with little knowledge of the contents and consequence" also not acceptable as CSE is a senior Head Cashier, supposed to know the content of letters and he should not come under anybodies pressure.
Through MEX-4, CSE has accepted that he has not deposited cash of various customers in their respective accounts due to personal problems and promise to deposit the entire amount in the respective customer account. Also, through MEX-5, the CSE has deposited money in most of the accounts and asked for some more time to deposit balance amount. Thus, it proves that the CSE has failed to discharge his duty and misused his position in the Bank and misappropriated of the customers funds for a long time. He has also breached the trust of the customers as well as Banking system."
As such the charge in this article is proved.
11.2 Thereafter, the Enquiring Authority had recorded its Conclusion as under:-
The charges against Mr. Gautam Roy, CSE have been established as under:
Charge No. 1 - Proved Charge No. II - Proved
12. Finding of Disciplinary Authority:-
WP(C) 3987/2023 Page 25 of 47The disciplinary Authority had, in the order date 17.10.2022, recorded his observation in respect of Charge No. I, as under:-
12.1 In respect of the finding recorded against Charge No: I "I would like to state that the Enquiry Officer has recorded a finding that the Branch had received verbal complaint from customers against non-deposit of money in their account and MW1 had acted on the basis of such complaint while negating my contention in the enquiry that in absence of any complaint from the bank customers the allegation of nat depositing money in the account after receiving money falls flat on the face of the record. This is perverse findings in as much as the Enquiry afficer in the proceedings of enquiry held on 24.05.2022 had recorded that the enquiry will proceed based on MEXI while sustaining our objection on the question of receipt of verbal complaint of customers put to MW1 by the PO. That apart the charge sheet is also silent in respect of receipt of any verbal complaint from the customers. Even the names of person or persons who had lodged verbal complaint before the MW1 were neither disclosed nor they were examined in the enquiry so as to enable me to cross examine them and find out whether they had in fact visited the branch to deposit money or they have any account in the branch thereby depriving from reasonable opportunity of defense as mandated by the Principles of Natural Justice.
This is an afterthought which has been taken into account by the Enquiry Officer while recording his finding in order to negate my defense. Further the Enquiry Officer has held that the Branch had not WP(C) 3987/2023 Page 26 of 47 maintained any Scroll Book which is not based on any evidence placed in the enquiry by the Bank Inasmuch as the MW1 had not deposed in the enquiry that the Branch had not maintained any Scroll Book. Thus the finding of the Enquiry Officer is not based on evidence on record and as such legally sustainable more so in view of the admission of MW1 that the marking of al. number, account number and amount in the Pre Scroll Register and putting the Scroll number in the deposit vouchers is part of the procedure for deposit of cash in the Branch. It is also an admitted position that none of the deposit vouchers in MEXI had any scroll number. Moreover in MEX1 le sl. No. 63, 65, 67, 68,69 & 70 there is no signature of cash receiver. MEXI is not the complete documentary evidence to establish deposit of cash amount by the customers in the cash counter of the bank as well as not depositing of the received amount in the respective accounts of the customers. The Presenting Officer did not adduce any other evidence in respect of Charge no. 1 which basically alleged that I did not deposit money in the customers' account on the date of receipt of deposits from them and as such the finding of the Enquiry Officer holding me guilty of charge no. 1 is not based on evidence completing the chain of circumstances required to establish the said charge. The finding of the Enquiry officer is not based on consideration of the relevant materials on record but on consideration of extraneous materials for which the finding is legally fragile and cannot be acted upon.
WP(C) 3987/2023 Page 27 of 4712.2 Finding of the Disciplinary Authority on charge No.I "Sh. Gautam Roy has totally failed to uphold honesty and integrity and his credibility is in doubt. He has violated Bank's norms while accepting deposits from customers (in 105 accounts) without depositing to respective accounts on various dates and thereby siphoning a huge sum of money over a period of time bypassing the systems and procedures of the bank. His reply is not acceptable."
12.3 Charge No. II.
"Mr. Gautam Ray committed fraudulent activities by crediting money in 105 no of accounts on date 10.11.2021 and 18.11.2021 for total amount of Rs. 8,69,430.00/-(Eight Lacs Sixty Nine Thousands Four Hundred Thirty Only, Which was not deposited on particular day on receipt of cash) by writing deposits slips on his own against the misappropriations reported over a period of 37 (Thirty Seven) months from 03/08/2018 to 24/09/2021. This has not only breached the trust of customers with the Bank but also resulted in loss of interest for depositors. His reply is not acceptable.
Second Show Cause Notice proposing punishment of "Compulsory Retirement, with superannuation benefits, i.e. pension and/or provident fund and gratuity as would be due otherwise under the rules and regulations prevailing at the relevant time WP(C) 3987/2023 Page 28 of 47 and without disqualification from future employment" in terms of Clause 6(c) of Memorandum of Settlement-Disciplinary Action and Procedure Therefore dated 10.04.2002 as amended from time to time in respect of Charge Sheet No. ZO/DIB/VIG/917 dated 03.03.2022 issued to Shri Gautam Roy vide our letter No 20/D1B/VIG/999 dated 21.09.2022 advising him to appear before the Disciplinary Authority at ZO Dibrugarh on 28.09.2022 at 11.00 AM for personal hearing of proposed punishment.
Personal Hearing with the CSE was conducted on 01.10.2022 as requested by the CSE, wherein he pleaded for retention of his job as he has two school going daughters along with age old mother to look after as he is the only bread earner of his family. He even requested to downgrade his post from clerical to sub staff. He has also submitted that he has returned the entire amount involved in the incident and there has been no loss incurred to the bank.
The above representation/submission given by CSE is not acceptable as it is established that the CSE has committed fraudulent activity of cash embezzlement 12.4 Thereafter, the Disciplinary Authority had recorded its conclusion as under:
It is observed from the charge sheet, reply of the CSE, findings of EO that the charge sheeted Employee has been found guilty of Charges I and II under Gross Misconduct under clause 5(1) of Memorandum of Settlement on Disciplinary Action and Procedure Therefor for workmen dated WP(C) 3987/2023 Page 29 of 47 10.04.2002 as amended from time to time. I find that ample and fair opportunity had been provided to CSE to submit his submission and to defend the charges leveled against him/or to rebut and counter the charges. I observe that the principles of natural justice and equality have been followed.
I have examined the entire records of the case and agree with the findings of the Enquiry Officer for the reasons given by him. I have carefully gone through the factual position of the case and have applied my mind independently to the instant disciplinary case. As such, I fully concur with the views and findings of the Enquiry Officer. I have also taken into consideration of the fact that the CSE has refunded embezzled amount in full, thus there was no financial loss to the Bank. However his act of cash embezzlement cannot be justifiable, which suggests mala-fide intention on the part of CSE. CSE has failed to discharge his duty with utmost honesty and integrity. Such an act of CSE had an adverse impact on the reputation of the Bank.
The CSE was placed under suspension w.e.f. 22.11.2021 for the alleged acts of misconduct.
In view of the above, the undersigned as the Disciplinary Authority impose upon Shri Gautam Roy, (SR No: 62537), Special Assistant, Charge sheeted employee, the penalty of:
"Compulsory Retirement, with superannuation benefits, i.e. pension and/or provident fund and gratuity as would be due otherwise under the rules and regulations prevailing at the WP(C) 3987/2023 Page 30 of 47 relevant time and without disqualification from future employment in terms of Clause 6(c) of Memorandum of Settlement Disciplinary Action and Procedure Therefore dated 10.04.2002 as amended from time to time.
The period of suspension undergone by the CSE will be treated as one on suspension (Non duty) only."
Sd/.
Disciplinary Authority
13. The finding of the Appellate Authority upon the appeal filed by the petitioner:-
The act of compromising the reputation of the bank by misusing his official position and doing acts which are against the principles of organization are not acceptable. The Appellant had credited the respective customer's Accounts on surfacing that the proceeds were not deposited in their A/cs. The gravity of the proved misconduct/charges are serious in nature and have adversely affected bank's reputation. It is observed that all reasonable opportunities were extended to the appellant in the departmental proceedings by adhering to the principle of natural justice. The appellant, in his appeal has not brought any new material or evidence to substantiate his claim of innocence. There is no merit in his appeal petition and I find no reason to interfere with the decision of disciplinary authority. I therefore reject the appeal petition of Shri Gautam Roy, SR No.62537, Ex-Special WP(C) 3987/2023 Page 31 of 47 Assistant and confirm the gross punishment of "Compulsory Retirement with superannuation benefits i.e. pension and/or provident fund and gratuity as would be due otherwise under the rules or regulation prevailing at the relevant time and without disqualification from future employment"
under clause 6 (c) of MOS-DAPT dated 10.04.2002, as amended from time to time.
Sd./ Appellate Authority Analysis of this Court
14. The argument of violation of the principles of natural justice.
As noted herein above, the impugned Enquiry Report and the finding of the Disciplinary Authority and also of the Appellate Authority is being attacked by Mr. Chakraborty, the learned counsel for the petitioner, on the ground of violation of the principles of natural justice. The substratum of his argument on this count is of two fold.
(i) The first one being - the customers, who had allegedly lodged verbal complaints against the petitioner, to the MW-1, the Branch Manager, were neither examined during the course of the enquiry nor their identity were disclosed and thereby causing prejudice to his defence. Moreover, the factum of verbal complaints of the customers, against the petitioner was never disclosed in the Charge Sheet and despite the Enquiring WP(C) 3987/2023 Page 32 of 47 Authority had allowed to bring on record such fact through the MW-1. This is an afterthought fact and relied upon by the Enquiring Authority only to negate the plea of the petitioner that had there been misappropriation of customer's money, there would have been complaints by the customers and in the absence of any customer's complaint the allegations are baseless.
(ii) The second one is - the Enquiring Authority had acted unfairly inasmuch as the petitioner was not extended the opportunity of cross-examining the Bank's witness after his re-examination by the Presenting Officer, thereby depriving him of fair opportunity to defend him.
14.1 According to Mr. Chakraborty, the unfair enquiry report is legally unsustainable and the penalty imposed by the Bank upon the petitioner on the basis of such unfair enquiry report, is untenable in law and as such, the impugned order of punishment, dated 17.10.2022, is liable to be set aside and quashed.
14.2 This Court has considered the submissions of Mr. Chakraborty, in the light of the given factual matrix, and there appears to be substance in his submission. It is not in dispute that nowhere in the Charge Sheet; the factum of verbal complaints of had been disclosed. This new fact was introduced through the mouth of the MW-1 during his examination, in the disciplinary proceeding without giving prior notice to the petitioner. The relevant portion of the WP(C) 3987/2023 Page 33 of 47 Enquiry Proceeding is reproduced herein below for better appreciation of the argument so advanced:-
PO to MW1 Have you received any written complaint in this matter?
MW1 No. PO to MW1 Have you received any verbal complaint in this matter? MW1 Yes. DR I will make objection here, since there is no mention of
any complaint received from any customer whatsoever and not mentioned in ME-1, So, the question is not relevant here and it may not be allowed. EA to all Objection sustained. The enquiry will proceed based on ME-1.
14.3 Further, it appears from the Enquiry Report that the Enquiring Authority, in his Report had made a categorical observation that the branch had not received any written complaint from customers about not depositing of the money in their accounts by the petitioner. And having recorded this categorical finding, the Enquiring Authority had placed reliance upon the evidence of MW-1 in respect of receipt of verbal complaint from the customers about the incident. Though the Enquiring Authority had accepted the objection of the Defence Representative (DR) in respect of the verbal complaint, yet, he had allowed the MW-1 to bring on record such factum and he had also placed reliance upon the same, in his report. The relevant portion of the Enquiry Report is reproduced herein below for ready reference:-
"As per DR argument, "in the absence of any complaint of the customers/account holders against the CSE, the allegation leveled by the Bank falls flat upon the face of the record." In my opinion, complaint has been received verbally and MW-1 has WP(C) 3987/2023 Page 34 of 47 acted upon that verbal complaint. Hence DR argument is not acceptable."
14.4 It also appears from the report that the Enquiry Authority had allowed the MW-1 to take part in argument. The relevant portion of the Enquiry Report is reproduced herein below for ready reference:-
"During argument, MW-1 informed that he has received verbal complaint about the incident, he has issued letter to the CSE to know the details of incident."
14.5 Thus, allowing the MW-1 to introduce the factum of receipt of verbal complaint and thereafter, placing reliance upon such fact, in his Enquiry Report and further allowing the MW-1 to take part in the argument, in the disciplinary proceeding raised a serious doubt about the role of the Enquiring Authority, especially in maintaining impartiality in the entire disciplinary proceeding. And this doubt could not be dispelled by the learned counsel for the respondents at the time of hearing. And to the considered opinion of this Court, it caused serious prejudice to the petitioner.
14.6 Further, it appears that the Enquiring Authority, while allowing the Presenting Officer to re-examine the MW-1, had not given any opportunity to the petitioner herein, to cross-examine MW-1. The relevant portion of the re-examination part of the MW-1 is reproduced herein below for ready reference:-
EA to PO Do you need re-examination.
PO to EA Yes sir
PO to Please peruse in MEX1, tell except sl. No. 63, 65, 67, 68,
MW1 69 and 70, who has accepted the other cash receipt
WP(C) 3987/2023 Page 35 of 47
vouchers?
MW1 Accepted by Mr. Gautam Roy
PO to Please peruse in MEX2 dt. 18.11.2021, except sl. No. 55 to
MW1 66 and tell who has accepted the money?
MW1 Sir, I have gone through all the vouchers dt. 18.11.2021
and found that Mr. Gautam Roy has signed and accepted money except vouchers sl. No. 24, 55 to 66, 80, 81, 82, 83, 84, 85, 86, 87, 88 and 89 where money received by Ms. Rajashree Hazarika.
PO to EA I have completed my re-examination EA MW1 is now discharged. Please sign here.
Signature of MW1 EA to all Now the time is 5.30 p.m. Today's enquiry is adjourned.
We shall continue the enquiry proceedings tomorrow (25.02.2022) by 11.00 a.m. at the same venue. All please sign the enquiry proceedings.
14.7 Thus, whatever evidence, which has been introduced by the MW-1 during his re-examination by the Presenting Officer, remained un-tested. And placing reliance upon such untested evidence of MW-1, after his re-examination, by the Enquiring Authority, in the Enquiry Report, also, to the considered opinion of this Court, had not only caused serious prejudice to the petitioner, but also it violates the principles of natural justice.
14.8 In holding so, this Court has derived authority from a decision of Hon‟ble Supreme Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, reported in (2013) 4 SCC 465, wherein, having relied upon its earlier decisions, Hon‟ble Supreme Court has held that Cross-examination is one part of the principles of natural justice. Relevant para is quoted herein below:-
"30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-WP(C) 3987/2023 Page 36 of 47
examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice."
14.9 Notably, Hon‟ble Supreme Court, in the aforesaid case, has also discussed and noticed upon following cases:-
(i) State of M.P. vs. Chintaman Sadashiva Waishampayan reported in AIR 1961 SC 1623, wherein a Constitutional Bench has held as under:-
"The rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. ..............."
(ii) Lakshman Exports Ltd. v. CCE, reported in (2005) 10 SCC 634, wherein Hon‟ble Supreme Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e. permission with respect to the cross- examination of a witness. In the said case, the assessee had WP(C) 3987/2023 Page 37 of 47 specifically asked to be allowed to cross-examine the representatives of the firms concerned, to establish that the goods in question had been accounted for in their books of accounts, and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard i.e. audi alteram partem.
(iii) In New India Assurance Co. Ltd. v. Nusli Neville Wadia, reported in (2008) 3 SCC 279, Hon‟ble Supreme Court has considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows : (SCC p. 295, para 45) "45. If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principles of natural justice should be held to be indefeasible right."
(emphasis added) In view of the above, we are of the considered opinion that the right of cross-examination is an integral part of the principles of natural justice.
(iv) In K.L. Tripathi v. SBI, reported in (1984) 1 SCC 43, wherein Hon‟ble Supreme Court held that, in order to WP(C) 3987/2023 Page 38 of 47 sustain a complaint of the violation of the principles of natural justice on the ground of absence of opportunity of cross- examination, it must be established that some prejudice has been caused to the appellant by the procedure followed. A party, who does not want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross- examination was provided to him, specially when the same was not requested, and there was no dispute regarding the veracity of the statement. (See also Union of India v. P.K. Roy [AIR 1968 SC 850] and Channabasappa Basappa Happali v. State of Mysore [(1971) 1 SCC 1: AIR 1972 SC 32].)
(v) In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mill, reported in (2006) 3 SCC 74, Hon‟ble Supreme Court held :
"9. In order to establish that the cross- examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilized for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to cross-examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses WP(C) 3987/2023 Page 39 of 47 to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to cross-examine any official."
(vi) In Rajiv Arora v. Union of India, reported in (2008) 15 SCC 306, Hon‟ble Supreme Court held as under:-
"13. ... Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. ...
14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review."
15. Thus, application of the ratios, laid down in the aforesaid cases, to given factual matrix of the case in hand, goes a long way to show that not only serious prejudice is caused to the petitioner for not allowing him to cross-examine the MW-1, after his re-
WP(C) 3987/2023 Page 40 of 47examination, but also it violates the principles of natural justice, thereby rolled the pitch for exercising the jurisdiction of judicial review, by this Court.
16. In this context, we may also gainfully refer to another decision of Hon‟ble Supreme Court in Apparel Export Promotion Council vs. A.K. Chopra, reported in (1999) 1 SCC 759, wherein, dealing with jurisdiction of High Court or Tribunal, Hon‟ble Supreme Court has held that judicial review, not being an appeal from a decision, but a review in the manner in which the decision was arrived at, the Court while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority, after following the principle established by law, and the rules of natural justice, and the individual has received a fair treatment to met the case against him, the Court cannot substitute its judgment for that of the administrative on a matter which fell squarely within the jurisdiction of that authority.
16.1 Again Hon‟ble Supreme Court in the case of TATA Cellular vs. Union of India, reported in (1994) 6 SCC 651, has held that judicial review is concerned with the decision making process itself and further, not the merit of the decision itself, and the duty of the Court is to confine itself to the question of legality and the concern should be- (1) whether a decision making authority exceeded its powers; (2) committed an error; (3) committed a breach of the rules of natural justice; (4) reached a decision which WP(C) 3987/2023 Page 41 of 47 no reasonable tribunal would have reached or; (5) abused its powers.
16.2 Further, it is to be noted here that Hon‟ble Supreme Court in the case of the Manager, Government Branch Press and Another vs. D.B. Belliappa, reported in (1979) 1 SCC 477, has held that it is well settled that the expression „matters relating to employment‟ under Article 16(1) of the Constitution of India is not confined to initial matters prior to the act of employment, but comprehends all matters in relation to employment both prior and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment, such as provisions as to salary, increments, leave, gratuity, pension, age of superannuation, promotion and even termination of employment. It is further well established that Articles 14, 15(1) and 16(1) of the Constitution of India form part of the same constitutional code of guarantees and supplement each other and if any authority is needed for the above enunciation, reference may be made to the observations made in the case of General Manager Southern Railway vs. Rangachari, reported in (1962) 2 SCR 586.
16.3 It is also well settled that not only in cases to which Article 14 applies that the rules of natural justice come into play. As pointed out in the case of Union of India vs. Tulsiram Patel, reported in (1985) 3 SCC 398, para 72, "The principles of natural justice are not the creation of Article 14. Article 14 is not their WP(C) 3987/2023 Page 42 of 47 begetter but their constitutional guardian." That case has traced in some detail the origin and development of the concept of principles of natural justice and of the audi alteram partem rule (at pp. 463-
80). They apply in diverse situations and not only to cases of State action. In the case of Swadeshi Cotton Mills vs. Union of India, reported in (1981) 1 SCC 664, the Hon‟ble Supreme Court has held that the principles of natural justice are implicit in every decision-making function, whether judicial or quasi-judicial or administrative.
16.4 In the case in hand, as discussed herein above the action of the Enquiring Authority violates the most precious fundamental rights, guaranteed by Article 14 and 16(1) of the Constitution of India, to the petitioner thereby rolled the pitch for exercising the jurisdiction of the of judicial review, by this Court. And that being so, the impugned Enquiry Report, is liable to be interfered with on this ground alone.
17. Further, it appears that the Scroll Register of the Bank had not been produced and exhibited during enquiry. Mr. Chakraborty, learned counsel for the petitioner has rightly been pointed out and I find sufficient force in the same. Even the Enquiring Authority had also recorded a finding to the effect that had the same been maintained, the incident like this could have been avoided. It also appears that the Enquiring Authority had relied upon the alleged confession made by the petitioner in the Exhibits 4 and 5 without the contents of the same being proved and by producing evidence WP(C) 3987/2023 Page 43 of 47 in support of the same. Mr. Chakraborty has rightly pointed this out and this Court finds sufficient force in the same and the decision referred by him in Roop Singh Negi (supra) also strengthened his submission. Besides the Enquiring Authority also had failed to ascertain as to whether Exhibits 4 and 5 were written by the petitioner by obtaining report of the handwriting expert.
17.1 Though, the respondent has contended that the department has followed the principles of natural justice and the petitioner was given ample opportunities to present his case and opportunity of being heard and the Enquiry Officer has only made the decision after analyzing the arguments of both the petitioner and the respondent, yet in view of the given factual and legal matrix this Court is unable to record concurrence to such submissions.
17.2 Further, this Court is unable to agree with stand of the respondents that there is disputed questions of fact which cannot be heard and decided by this Hon'ble Court, while exercising its power under a writ jurisdiction and, therefore, the present petition is liable to be dismissed on this ground alone in view of the judgment of the Hon'ble Supreme Court of India in the case of Syed Yakub Vs. K. S. Radhakrishnan, reported in AIR 1964 SC 477, on the issue involved. Here in this case, the most precious fundamental rights guaranteed by Article 14 and 16(1) of the Constitution of India, are violated and thereby furnished the ground for judicial review of the Enquiry Report.
WP(C) 3987/2023 Page 44 of 4718. The petitioner herein had raised the all the issues discussed herein above before the Enquiring Authority at various stages. But, the Enquiring Authority had failed to address the same. Thus, on the following counts, the impugned Enquiry Report is liable to be interfered with:-
(i) The Enquiring Authority had allowed the MW-1 to introduce the factum of receipt of verbal complaint during his examination, without there being any mention in the charge sheet and also relied upon the same in recording a finding in the Enquiry Report. But, neither the names of the customers were disclosed in the enquiry nor they were examined in the enquiry thereby denying the petitioner of his valuable right to cross-
examine the persons, and violated his right guaranteed under Article 14 and 16(1) of the Constitution of India.
(ii) The Enquiring Authority had played a bias role in conducting the enquiry. To negate the cross examination of MW-1, he permitted the Presenting Officer to re- examine MW-1, when request for such re-examination was not even made by the Presenting Officer and no opportunity was given to the petitioner to cross-examine the witness after his re-examination.
(iii) The enquiry was conducted in violation of the principles of natural justice and the procedure established by law and as such, the same cannot be termed as fair enquiry.
WP(C) 3987/2023 Page 45 of 47(iv) The scroll register was not produced during the enquiry.
(v) No opinion of handwriting expert was obtained to establish the alleged confession of the petitioner.
19. Since the Disciplinary Authority, in the impugned order of awarding punishment and the Appellate Authority in the impugned appellate order, had failed to address the aforesaid issues, so raised by the petitioner by giving reason, which is a must in view of the decision of Hon‟ble Supreme Court in the case of Krishna Narayan Tewari (supra) and acted upon the Enquiry Report, which is already held to be conducted in contravention of the principles of natural justice, cannot be allowed to stand, and accordingly, the same are also liable to be interfered with.
20. In the result, this Court finds sufficient merit in this petition. And accordingly, the impugned Enquiry Report, dated 28.07.2022 [Annexure-7] and the impugned order of imposing punishment dated 17.10.2022 [Annexure- 8] and also the order dated 10.05.2023, passed by the Appellate Authority [Annexure-10] by which the appeal, so preferred by the petitioner, was dismissed, stands set aside and quashed.
21. Consequently, the petitioner has to be re-instated in service with all back wages. In holding so, this Court derived authority from a decision of Hon‟ble Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalay, reported in (2013) 10 SCC 342, wherein it has been held that in cases of WP(C) 3987/2023 Page 46 of 47 wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
22. And the said exercise mentioned in para 21 above, has to be carried out within a period of four weeks from the date of receipt of certified copy of this order. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of one week from today.
23. Since the impugned Enquiry Report and the Order of imposing punishment by the Disciplinary Authority and also the Order of Appellate Authority, are set aside and quashed on technical ground, the same would not be a bar in conducting a fresh enquiry by the respondent authorities. In holding so, this Court derived the authority from a decision of Hon‟ble Supreme Court in Debendra Pratap Narain Rai Sharma vs. State of Uttar Pradesh, reported in AIR 1962 SC 1334.
24. In terms of above, this petition stands disposed of leaving the parties to bear their own costs. Registry shall send down the original records forthwith.
Sd/- Robin Phukan JUDGE Comparing Assistant WP(C) 3987/2023 Page 47 of 47