Allahabad High Court
Dev Mani Sharma vs Secy.General Manager Bahraich ... on 21 April, 2017
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Writ Petition No. 3459 of 2001 (S/S) Dev Mani Sharma ...... Petitioner Versus Secretary/General Manager, Bahraich & ors ....... Opp. parties ***** Hon'ble Dr. Devendra Kumar Arora, J.
At the out-set it is relevant to mention that the aforesaid case was called twice but none appear on behalf of the contesting respondents. Counsel for the petitioner has submitted that the matter is pending since last 16 years causing serious prejudice and mental trauma to the poor petitioner, who has been dismissed from service on the basis of defective disciplinary proceedings.
As the matter is quite old and there is no request on behalf of contesting respondents for passing over or adjourning the case, I proceeded to hear the matter finally and heard learned Counsel for the petitioner and also examined the record.
Petitioner, who was Clerk-cum-Cashier in District Cooperative Bank, was subjected to disciplinary proceedings for committing financial irregularities while being posted at Fakharpur and Hardi and ultimately vide order dated 31.3.2001, he was dismissed for service by the Secretary/General Manager, Bahraich District Cooperative Bank Limited, Bahraich.
According to the learned Counsel for the petitioner when the petitioner was served with the charge-sheet dated 21.10.1992, he submitted his explanation and the competent authority after considering the reply exonerated and reinstated the petitioner w.e.f. 7.10.1993. However, while being reinstated certain adverse remarks were made and a direction was given that he will not function as Cashier. Surprisingly, the petitioner was again served with a charge-sheet dated 7.2.1997, on receipt of which the petitioner wrote several applications dated 31.3.1997, 12.4.1997, 20.5.1997, 24.5.1997, 12.6.1997, 27.10.1997 and 24.2.1998 for providing copies of the documents and evidence relied upon in the charge-sheet to make effective reply but same was not provided compelling the petitioner to submit his reply in absence of documents, which he submitted on 30.11.1998.
According to the petitioner's Counsel charge no.6, 7, 8, 9 in the charge-sheet were same as were levelled in the earlier charge-sheet in respect of which he was already exonerated. He has further submitted that in Branches Hardi and Phakharpur there were only three employees, namely, one Branch Manager, the other Clerk-Cum-Accountant and the third Clerk-cum-Cashier. Whenever a withdrawal form is submitted, the Accountant will check the amount and place the same before the Branch Manager, who after comparing signatures and being satisfied that the withdrawal form is of a genuine person, the Branch Manager will pass the payment and then the sanctioned payment voucher duly signed by the Branch Manager is received by the Clerk-cum-Cashier, who used to make payments.
While inviting attention of the court towards the charges as contained in the charge-sheet, it has been submitted that the charge no.1 relates to Amrit Lal Tewari and Pawan Kumar Singh, about the entries in the records and saving accounts, which was not the duty of the petitioner as it was not the job of the petitioner to check the accounts or to make entries in the accounts. As far as charge nos. 2,3 and 4 are concerned, it relates to disbursement of loan. The cheque towards the loan is issued by the Branch Manager after recommendations of the Secretary, Co-operative Bank/The Assistant Development Officer of the Cooperative Society. Therefore, the petitioner, who was Clerk-cum-Cashier, has no role, in any manner, either in the disbursement of loan or in the payment or in any other manner, at any stage.
As far as charge no.5 is concerned, it has been submitted that the petitioner has agricultural land in two villages, namely, Saigaon and Nausera. He took the loan from the Bank through the society and has repaid the entire loan amount and nothing is due as such there is no illegality or irregularity in taking loan, as the same was re-paid in due course of time. Similarly, there is no sin in the loan taken by the petitioner's brother Satya Deo Sharma for agricultural purposes, which was also re-paid in due course of time.
On the strength of the decisions rendered in (1993) 4 SCC 727; Managing Director ECIL Versus B.Karunakar and others, (2010)2 SCC 722; State of Uttar Pradesh and others versus Saroj Kumar Sinha, (2008) 2 UPLBEC 1325; Girish Chandra Singh Versus State of U.P., 2011(2) ADJ 345; Abdul Salam versus State of U.P.and others, it has been argued that neither any witness was examined on behalf of the Bank nor any opportunity was afforded to the petitioner to produce his defence or afforded oral hearing. It has also been alleged that the petitioner was not afforded copy of the inquiry report and as such he remained in dark about the findings of the Inquiry Officer. It has also been pointed out that the petitioner received a notice dated 7.8.1999 from the Bank whereby the petitioner was asked to appear. In the said notice, a reference was made that earlier also a show cause notice was sent vide letter dated 10.9.199. As a matter of fact, the petitioner had not received any show cause notice for the proposed punishment and when the petitioner received letter dated 7.8.1999, the petitioner vide letter dated 20.8.1999 informed the Bank that he had not received any letter dated 10.6.1999 and has requested for supplying the copy of the alleged notice dated 10.6.1999 alongwith the copy of the inquiry report.
However, the respondent-authorities without considering the reply and request of the petitioner for supply of documents, tpassed the impugned order dated 31.3.2001 dismissing the petitioner from service. It has been contended that the impugned order of punishment stands vitiated for the reason that no proper procedure was adopted in inquiry proceedings and no inquiry report was furnished to the petitioner. Moreover, the petitioner was not afforded opportunity of hearing before the Inquiry Officer and also after issuance of show cause notice for the proposed punishment.
In the counter affidavit filed by Sri N.K.Yadav, Secretary/General Manager, District Cooperative Bank, Bahraich it has been stated that while posted as Accountant-Cum-Cashier at Hardi branch of the Bank, was found to be involved in misappropriation and embezzlement of bank money and there upon a disciplinary proceeding was initiated against him and he was placed under suspension on 31.8.1992. It has been averred that two Inquiry Officers, who were appointed by the competent authority, did not prepare or serve the charge-sheet and as such the then Secretary of the Bank on the basis of preliminary fact finding inquiry report, himself prepared the charge sheet and served the same upon the petitioner. It has been clarified that vide order dated 7.10.1993, the petitioner was reinstated provisionally on certain terms and conditions. Again the Committee of Management in its meeting dated 8.7.1996 decided to initiate the disciplinary proceedings against the petitioner for his active involvement in the financial embezzlement and causing loss to the Bank. In these circumstances, the petitioner was again placed under suspension and a charge-sheet was served upon him on 7.2.1997.
As regard the opportunity of hearing and supply of documents, it has been averred in the counter affidavit that the petitioner was given ample opportunity to inspect the documents. In paragraph 31 of the counter affidavit filed by the respondents, it has been stated that petitioner personally appeared on 15.10.1999 before the Disciplinary Authority and on 8.12.1998 before the Inquiry Officer. He tendered his reply to the show cause notice before the disciplinary authority but he did not avail the opportunity of examination of witnesses etc. before the Inquiry Officer. As regard the payment of loan taken by the petitioner and his brother, it has been stated that brothers of the petitioner and petitioner himself are defaulter as their name find place in the list of the defaulters published on 1.7.2000.
The main contention of the petitioner is that he has been denied ample opportunity to defend himself and disciplinary proceedings have been conducted in breach of the natural justice. It has also been alleged that the documents were not supplied to him as demanded. The said assertion of the petitioner is misconceived and incorrect as in paragraph 12 of the writ petition, it has been stated that in response to the petitioner's request for inspection of the documents, the Inquiry Officer fixed 9.4.1997 vide his letter dated 2.4.1997, which was duly served upon the petitioner but he did not turn up either on the said date or on the subsequent date i.e. 13.6.1996. The Inquiry Officer again fixed 18.9.1998 and 19.9.1998 for inspection of the documents at Branch Fakharpur and Hardi, on which dates he inspected some of the documents. The petitioner again inspected the documents on 24.9.1998, 9.10,1998 and 10.10.1998 and gave a letter to the Inquiry Officer with regard to the satisfactory inspection of the entire documents on 10.10.1998, copy of which has been annexed as Annexure-7 to the counter affidavit. The assertion of the petitioner that he was not supplied copy of the inquiry report is also false as a perusal of the counter affidavit reveals that copy of the inquiry report was supplied to the petitioner by the Committee of Management vide letter dated 6.10.1999 whereby the petitioner was also required to appear before the Committee for personal hearing on 15.10.1999. The petitioner not only submitted his reply but also appeared before the Committee on 15.10.1999 and put forth his version. Therefore, the assertion of the petitioner that he was not afforded opportunity to defend himself cannot be accepted.
The Apex Court in the case of Bank of India v. Apurba Kumar Saha ; (1994) 2 SCC 615, has held that a bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and honesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him by the bank employer had resulted in violation of principles of natural justice of fair hearing.
It is pertinent to mention that every employee of the Bank is responsible for the affairs of the Bank jointly and severally. What work is to be performed by a particular employee of the Bank is the prerogative of the Bank Manager of the said Branch. Petitioner while performing the duties as Cashier was under an obligation to verify the cash amount. From the material on record, it emanates that in the inquiry, it was found that certain payments were withdrawn without any entry in the concerning books of account by the petitioner. The charge no.1 against the petitioner is with respect to withdrawal of certain amount of money without making any entry in ledger of the account holder. The withdrawal in question relates to Shri Amrit Lal Tewari and Pawan Kumar Singh, who are said to be old customers of the Bank and withdrawals were made by the petitioner without entering the same in cash book, which was the primary duty of the petitioner being Cashier. It was also found that the petitioner fraudulently has even withdrawn the amount of loan in the name of dead persons. In paragraph 20 of the Counter Affidavit, it has been stated that the petitioner had illegally withdrawn the amount of money from the accounts of certain customers of the Bank without first posting them in their respective accounts. Not only this, signatures on the withdrawal forms were also manipulated by the petitioner. Thus not only he embezzled the amount but also caused financial loss to the Bank.
As regard the assertion of the petitioner that he had cleared the loan which was taken by him from the Bank, it is relevant to point out that in paragraph 22 of the counter affidavit it has been stated in clear words that the petitioner being member of Sadhan Sahkari Samiti Limited Baundi applied for the loan and was given a sum of Rs. 4996/- on 25.1.1988. As per rules, he cannot be granted another loan without clearing the earlier dues. But taking advantage of his position, the petitioner who had fallen in arrears for non payment of loan again got sanctioned a sum of Rs. 3703/- on 24.8.1988 and Rs. 2000/- on 30.8.1989. Further, the petitioner by misusing his position, got the above loan waived of under "RIN RAHAT YOJNA" in a most arbitrary and illegal manner. Here, it would be relevant to mention that the petitioner has not filed any rejoinder affidavit rebutting the aforesaid averments in the counter affidavit and as such there is no reason to disbelieve the aforesaid facts.
It is relevant to add that there were serious allegation of financial irregularities against the petitioner who was working as a Cashier in the Bank. The order of dismissal has been passed by the concerned authority after considering the gravity of the charges, which are very serious nature and the finding of facts recorded by the Inquiry Officer cannot be upset by this Court while exercising writ jurisdiction under Article 226 of the Constitution. My above view is countenanced by the decision of the Apex Court in the case of State of Andhra Pradesh v. Sree Rama Rao; AIR 1963 SC1723 wherein it has been propounded that where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence especially when the charged officer had not raised the grounds urged by him before the High Court, before the Inquiring Authority.
It may be added that it is well known that the standard of proof that must be employed in domestic inquiries is in fact that of the preponderance of probabilities. In Union of India Vs. Sardar Bahadur, (2011) 4 SCC 584, the Apex Court Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. This view has been reiterated in State Bank of India & ors. Vs. Ramesh Dinkar Punde (2008) 7 SCC 580. More recently, in State Bank of India Vs. Narendra Kumar Pandey (2013) 2 SCC 740, the Hon'ble Supreme Court observed that a disciplinary authority is expected to prove the charges leveled against a bank-officer on the preponderance of probabilities and not on proof beyond reasonable doubt. Further, in Union Bank of India Vs. Vishwa Mohan 1998 (4) SCC 310, the Apex Court was confronted with a case which was similar to the present one. The respondent therein was also a bank employee, who was unable to demonstrate to the Court as to how prejudice had been caused to him due to non-supply of the inquiry authorities report/findings in his case. The Apex Court has held that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this were not to be observed, the Court held that the confidence of the public/depositors would be impaired. In these circumstances, the case laws relied upon by the petitioner are of no avail to him.
In view of the above discussions, I do not find any infirmity or irregularity in the impugned order of dismissal which has been passed after due inquiry and participation of the petitioner in the disciplinary proceedings. Accordingly, the writ petition lacks merits and is hereby dismissed.
Order Date: 21 April, 2017 [ Dr. D.K.Arora,J.]
MH/-