Allahabad High Court
Jata Shanker Misra vs Assistant General Manager Banares ... on 3 July, 2018
Author: Ashok Kumar
Bench: Ashok Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 6 Case :- WRIT - A No. - 30277 of 2000 Petitioner :- Jata Shanker Misra Respondent :- Assistant General Manager Banares State Bank Ltd.& Others Counsel for Petitioner :- Suman Sirohi,D.N.Yadav,R.C. Singh,Sumati Rani Gupta Counsel for Respondent :- N.Sinha,Ashok Trivedi,S.C. Hon'ble Ashok Kumar,J.
Heard Sri Narayan Dutt Shukla, Advocate holding the brief of Sri R.C. Singh, learned counsel for the petitioner and Sri Ashok Trivedi, learned counsel representing all the respondent.
The instant writ petition has been filed against the order of dismissal dated 28.06.1999 and the appellate order dated 11.04.2000 (annexure- 1 and 2 to the writ petition).
The petitioner has sought for a mandamus commanding the respondent- bank to permit him to resume duties as cashier and further to pay all his wages with effect from the date of the dismissal order dated 28.06.1999.
The facts of the case are that the petitioner was a class-III employee in respondent-bank, the Benares State Bank Ltd. and he was working as a cashier at Shivpur Branch. The allegations against the petitioner are that on 23.09.1995 he had negligently accepted initial deposit of Rs. 2500/- for the new current account, styled as Noori Chhapai Kendra through the pay-in-slip. The said pay-in-slip neither bears full name / signature of the new account holder nor the alteration in the title of account on the aforesaid pay-in-slip authenticated by the new account holder.
The petitioner thereafter has managed to have the forged demand drafts from a stolen demand draft book deposited in the account in collusion with one Shyamji Mishra, clerk and not to arouse the suspicion, ensured that the relative draft advice were delivered to Shivpur Branch with covering letters written by the petitioner, while drafts were written by the clerk namely Shyamji Mishra.
It is further reveals that while effecting payments of nine cheques which passed through the petitioner's hand in the cash section of the branch, the second signature of the purported payee, which have been obtained on the reverse of the cheques at the time of receiving back the tokens, do not match with the first signature on the reverse of the cheque.
It is further noticed that the petitioner has accepted two cheques for sum of Rs. 72,000/- and Rs. 1,60,000/- respectively on 09.10.1995 and 29.11.1995 and have avoided to put his initials on the debit scroll. It is further notices that while paying cheques for sum of Rs. 1,60,000/- the petitioner had paid sum of Rs. 1,40,000/- in cash and detained a sum of Rs. 20,000/- for which cash pay-in-slip was got filled by the petitioner in the current account. It is further noticed that the counter clerk, which bears the signature as Raja Ram (signaute are put in hindi by Raja Ram) but apparently do not match with the signature of the purported drawer and payee of the cheque.
Based on the aforesaid irregularities, the disciplinary authority has passed the final order of the termination dated 30.06.1999, after affording due opportunity of hearing to the petitioner and accordingly an order of dismissal from the services of the bank has been passed with immediate effect namely with effect from 30.06.1999.
A charge sheet dated 20.12.1996 has been filed against the petitioner which too has been challenged by the petitioner along with the order of final dismissal of service from the bank dated 30.06.1999 before the appellate authority namely, the General Manager (Operations) the Benares State Bank Ltd.
The appellate authority vide its order dated 11.04.2000 has proceeded and has passed a detailed order by which he has confirmed the order passed by the disciplinary authority of the dismissal from the services of the bank. The appellate authority has further confirmed the penalty imposed by the disciplinary authority.
In the appeal before the General Manager (operation) the petitioner has raised following contentions:-
"1. Charge sheet does not include list of documents/witness against the procedure of law. The contention is not tenable as the charge sheet issued is elaborate and there is no such binding in terms of clause 19.12(a) of BPS dated 19.10.1966.
2. The two cheques numbered 1506876 and 1506899 mentioned in the charge sheet is not passed in the account Noori Chhapi Kendra. The above cheques mentioned in the charge sheet is of a typological error which has been wrongly typed as 1506876 and 1506899 instead of 1506899 and 1506889 respectively which has been brought on record during the enquiry proceedings, hence it is not material.
3. That initial deposit of Rs. 2500/- in the account styled as Noori Chhapai Kendra was not received on 23.09.1995 but with a view to confuse CSF, PO gave the copy of altered pay-in-slip also of dated 23.09.1995 mentioning the names of account as M/s. Noori Chhapai Kendra by cutting the original title of account as Raja Ram. The contention of Sri Jata Shankar Mishra is not acceptable as the initial deposit of Rs. 2500/- was made on 23.09.1995 itself which was bearing name of Raja Ram which was altered as Noori Chhapai Kendra without authentication. The account under style M/s. Noori Chhapai Kendra was opened on 23.09.1995 which further establishes that the pay-in-slip of Rs. 2500/- dated 23.09.1995 of Raja Ram was altered under the style of M/s. Noori Chhapai Kendra without authentication.
4. The charge that CSE got deposited the forged DDs in the account in collusion with Shyamji Mishra and ensured delivery of draft advices with covering letter has not been established by P.O. It is evidently clear that Sri Shyamji Mishra has also been charge sheeted for the case and charges against him are proved and punishment awarded by DA which establishes the collusion. As regards ensurance of delivery of draft advices with covering letter has been established by MW1 in her report.
5. The allegation that second signature on the back of cheques does not match with the first signature is wrong as PO has stated that there is no complaint in this regard during the proceedings. The contention of Sri Jata Shankar Mishra is not acceptable as the payment itself was against forged draft and as such any complaint for difference of signature on the back of cheque does not arise.
6. During proceedings dated 09.12.1997 PO has stated that CSE has prepared the draft advices and management is satisfied that CSE is not longer a loyal servant and considerable financial loss has been caused to the bank shows the mind of DA. This contention of Sri Mishra is not true as during the presentation of the case presenting officer presents the case on behalf of the management to substantiate the charges but it does not reflect that the DA is of the same opinion or mind.
7. The PO gave documents on 02.04.1997 for the first time without any witness and on 01.09.1997 for the second time which shows that there was no documents/witness and was in arrangement to create a witness by that time to support the imaginary charge sheet. The contention of Sri Mishra is imaginary and is therefore not tenable. The fact is the enquiry commenced on 11.03.1997 in which Sri Mishra denied the charges and requested to be defended by a Lawyer and on rejection of the same by EO asked 20 days time to fix a DR. Hence, in the next hearing which was fixed on 27.03.1997 Sri Mishra appointed his DR and EO directed to PO to submit documents by 02.04.1997 which PO complied and during the course of presentation of his case, name of witness were also given.
8. The relevant and reasonable documents were not provided and for deciding relevancy of the documents the same were also denied by DA and PO due to which EO became helpless. The contention of Sri Mishra is not true as the relevant documents were provided which were demanded by DR and only those documents which were treated as irrelevant by DA could not be provided.
9. The witness gave report for three times and all different as annexed to Appeal. This is not true as all the three annexures are of the same report which is clearly evident on going through it.
10. The enquiry has not been conducted as per BPS norms as the same has been done on loose papers instead of serially numbered thick bound register. The contention of Sri Mishra holds no ground because proceedings though written on loose papers does not vitiate the enquiry, as copy of each day proceedings were handed over to CSE and PO on the same day. It was only on 07.04.1998 that the changed DR raised this objection which was immediately followed and the next proceeding was noted on the bound register.
11. EO was doing the job of D.A. as he has crossed the jurisdiction also and has manipulated letters which is evident from Annexure of Appeal. The objection raised by Sri Mishra is baseless since the matter referred is self explanatory. The letter of DA refers to the letter from EO dated 19.03.2000 and 20.03.2000 hence the date of 17.04.1999 does not arise. However, on going through the record the said letter is dated 20.04.1999 only which DA has sent.
12. In terms of clause 19.4 of BPS when departmental and criminal proceedings are going on the same charges, the departmental enquiry is to be stayed, but DA pressed the EO to conclude the enquiry. The contention of Sri Mishra is based on wrong allegation because the charges of the domestic enquiry and the Police enquiry were different.
13. The report of handwriting expert of Mrs. Brij Bala Thakur was in complete due to lackness and during the enquiry the version of writing expert and PO were different even the demand for fair and complete report was never given. The contention of Sri Mishra is not acceptable as the report (relevant portions) was produced and given during the enquiry. As regard the version of handwriting expert and PO, the EO had after satisfying himself and going through all facts had given his findings after relying on the same to which the undersigned fully concur.
14. DA has counter signed the FIR report as Regional Manager which is a serious disqualification as he is also witness to the Police case. The objection raised by Sri Mishra is based on wrong assumption because FIR was countersigned in the capacity of Regional Manager and has not been field in any and same need not disqualify him as DA as long as he has applied his mind in unbaised manner and deals on merit. While going through the procedure of the proceedings the undersigned finds no conspiracy or baised decision by the DA.
15. The circular Cir/A&I/05/94-95 dated 4.2.1995 has two markings of numbers and circular had not acknowledgement of CSE. The objection raised by Sri Mishra is baseless as the circular /A7I/05/94-95 dated 4.2.1995 irrespective of marking of number is one i.e. having same contents including the No & dated of circular. As regards having no acknowledgement on the circular by CSE, it is a laid down rule that any circular issued by the bank should be read by all the employee and it is binding on all the staff members.
16. DA has in its letter dated 2.2.1999 informed that since Sri Jain was delaying to give the opinion, the documents were called back and given to MW 1, whereas EO in the proceedings has mentioned that as his (S.K. Jain) opinion has not been relied upon in the enquiry. The contention of Sri Mishra is based upon assumptions hence not acceptable. It is evidently clear throughout the proceedings that there is no report of Sri S.K. Jain and as such not calling for witness of Sri Jain by EO stands fully justified and only in this context EO has mentioned that opinion of Mr. Jain has not been relied up on in the enquiry."
The appellate authority after consideration all the contentions of the petitioner and after going through the entire record, which was available before him, have concluded that the proceedings of the enquiry, so also the contentions put forth by the petitioner in his appeal, and further during the course of personal hearing afforded to the petitioner there is no reason to interfere into the matter both with respect of penalty imposed by the disciplinary authority as well as the order of dismissal from the service of the bank.
The charge sheet which has been submitted on 20.12.1996 by the investigating officer clearly indicates that while working as the cashier at Shivpur Branch the petitioner had, in collusion with Sri Shyamji Mishra, clerk managed to have the following forged demand drafts from a stolen demand draft book and deposited in the fictitious account opened by the petitioner in his name. The details of forged demand draft is found as below:-
"Forged Dds (Prepared Amout- on leaves of lost (Rs.) blank DD Book)No. 059478 1,86,00.00 059480 2,00,000.00 059482 2,14,000.00 059483 3,66,000.00 059491 3,00,000.00"
The charge sheet further indicates that proceeds of the above five forged demand draft were withdrawn in parts through sixteen cheques, out of these sixteen cheques nine cheques, detailed is clearly indicated in the charge sheet, passed though the hands of the petitioner in cash section of the branch wherein the second signature of the purported payee, which have been obtained on the reverse of the cheques at the time of receiving back the tokens, do not match with the first signature on the reverse of the cheques.
The bank therefore has concluded that by the above negligent and fraudulent act committed by the petitioner, the bank has suffered considerable financial loss and therefore the act of the petitioner constitute a gross misconduct within the meaning of clause-19.5 (J) of the bi-partied settlement dated 19.10.1966 amended from time to time which provides as follows:-
"19.5 (J) Doing any act prejudicial to the interest of the Bank on gross negligence involving or likely to involve the Bank in serious loss."
The enquiry officer after due consideration of the entire enquiry proceedings with overwhelming evidence has observed that he has no hesitation in coming to the conclusion that the petitioner has committed gross misconduct within the meaning of clause-19.5 (J) of bi-partied settlement dated 19.10.1966 revised up to date and then caused huge financial loss to the bank.
Having heard the counsel for the parities, I found that in the instant case the petitioner was discharging the public duty and there is clearly an element of public function while performing the duties as cashier in the Benares State Bank Ltd., therefore the petitioner was supposed to work as a public servant while discharging his duties which is being discharged in the public interest.
The contention of the counsel for the petitioner is that even in the charge sheet it has been stated that the petitioner had negligently accepted Rs. 2500/- for the opening of a new account in the name of one Noori Chhapai Kendra. He has submitted that there was no collusion as alleged with Sri Shyamji Mishra and further that the necessary documents had not been supplied / given to the petitioner along with charge sheet, therefore, the petitioner could not furnish his proper reply.
Learned counsel has further submitted that before dismissal order had been passed the petitioner was supplied an enquiry report whereas enquiry officer has not provided proper opportunity to the petitioner. Learned counsel for the petitioner has submitted that even before enquiry officer it was contended by the petitioner that the criminal proceeding was pending on the basis of the first information report lodged by the respondent-bank therefore the house enquiry should be kept in abeyance. The said request was even rejected and at that point of time the petitioner has approached this Court by means of the writ petition no. 21384 of 1999 which was dismissed of vide order dated 26.05.1999 after hearing the parties at length.
Per contra learned counsel representing the respondent-bank Sri Ashok Trivedi has submitted that the depositors, in collusion with the petitioner, managed to get five bank drafts deposited in the new account of M/s. Noori Chhapai Kendra which has been admittedly opened by the petitioner himself.
The aforesaid drafts were drawn on the leafs of draft book stolen from Orderly Bazaar Branch of the then Benares State Bank Ltd. Sri Ashok Trivedi has pointed out that with the collusion of another clerk namely Sri Shyamji Mishra (who was also dismissed from the services) the forged documents are prepared and money has been purported. He has further pointed out that the petitioner was found negligent and on account of lapse, negligent and collusion at the hands of the petitioner a charge sheet has been issued by which the petitioner has been charged for the offence as described in clause 19.5 (J) "(doing any act prejudicial to the interest of the bank on gross negligence involving or likely to involve the bank in serious loss)".
After hearing the learned counsels at great length and after going through the material available on record it is a fit case where the petitioner is rightly found guilty not only of negligent but has committed a fraudulent activity and on account of his misconduct the respondent bank has suffered huge loss as well as reputation of the bank has deteriorated.
The relationship between the bank and customers is purely and solely based on faith and trust. In the event of any mischievous act committed by a bank employee not only the image of the institution, that is the bank, suffers but it further creates doubt in between two entity namely the bank and their customers. Usually the bank customers deposits their hard earn money based on the reality that the same is in the most safest hands, but in a case of fraudulent act by a bank employee the said trust and faith demolishes, therefore seeing such relationship in between the banks and their customers, it can not be permissible to any bank employee to act other than that is expected from him. A Bank employee even can not think to commit any fraud either with his employer namely the bank or with its customers namely the account holder.
In view of the aforesaid reasons and on account of peculiar facts, I do not find any error in the order of the dismissal from service and the impugned order of the appellate authority by which order of dismissal from service has been affirmed.
The writ petition is dismissed.
Order Date :- 3.7.2018 SK Srivastava