Gauhati High Court
Indra Mohan Pator vs United Bank Of India & 3 Ors on 15 March, 2017
Author: Manojit Bhuyan
Bench: Manojit Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WA 172/2014
Shri Indra Mohan Pator,
S/o. Shri Mahesh Chandra Pator,
Village- Raidongia (Phulaguri), P.O. Aibheti,
District- Nagaon. ..................... Appellant
-versus-
1. United Bank of India,
A Banking Company constituted under the Banking
Companies (Acquisition and Transfer of Undertakings)
Act, 1970 having its Head Office at 16, Hemanta Basu
Sarani, Kolkata- 700 001.
2. Zonal Manager & Disciplinary Authority,
United Bank of India, Guwahati Zonal Office,
Guwahati-7.
3. The Appellate Authority & General Manager (Treasury
Management), United Bank of India, 16 Hemanta Basu
Sarani, Kolkata- 700 001.
Nagaon, Assam.
4. Sri Dilip Kumar Dev,
Enquiry Officer, United Bank of India,
Zonal Office, Guwahati-7. .................. Respondents
:: BEFORE ::
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE MANOJIT BHUYAN
Advocate for the appellant : Mr. S.K. Medhi,
Mr. A. Das and
Mr. S. Rabha, Advocates.
Advocate for the Respondent : Mr. S. Dutta, Sr. Advocate.
Nos.1,2 & 3 : Mr. N. Kalita, Advocate.
Date of hearing & Judgment : 15.03.2017.
WA 172/2014 Page 1 of 12
JUDGMENT AND ORDER (ORAL)
(Manojit Bhuyan, J) At the relevant time, the appellant/petitioner Indra Mohan Pator was serving as the Deputy Manager, United Bank of India and posted at Demow- Chariali Branch under Sivasagar Regional Office. On 04.08.1995 he was placed under suspension for alleged misconduct in contemplation of drawal of disciplinary proceeding. On 12.09.1996 the Articles of Charges was issued together with the Statement of Allegations on which the charges were based. As many as 11(eleven) charges were framed pertaining to act of defrauding the Bank in connivance with one Shah Jamal Ali, a bank employee; causing and exposing the Bank to financial risk and loss; manipulation of records prejudicial to the interest of the Bank; acting in a manner unbecoming of a Bank Officer; misappropriation of money for personal gain etc. On the alleged act of misconduct/irregularities, the appellant was asked to submit his written statement of defence. On 01.11.1996 the appellant made a short reply denying the charges and expressing his astonishment of being roped in when the acts of fraud had been committed by Shah Jamal Ali. He pleaded exoneration from the charges leveled. The Office Order dated 13.11.1996 came to be issued for holding a departmental enquiry into the charges and an Enquiry Officer was appointed under Regulation 6 of the United Bank of India Officer Employees' (Discipline & Appeal) Regulation, 1976 (hereinafter called the 'Regulations').
2. The ingredients of the charges, which were the subject-matter of enquiry, were as follows:
"Charge No. 1: Shri Pator opened SB a/c No. 8028 in the name of Smt. Champa Sahu, a fake person, violating bank's rule.
Charge No. 2: Shri Pator passed withdrawals and debit voucher in the SB a/c No. 8028 deliberately overlooking unauthorized and fraudulent credit entries in the a/c.
Charge No. 3: Shri Pator connived with Shri S.J. Ali, CCG, and allowed Shri Ali to work in SB ledger No. 23 without any formal office order which helped/facilitated Shri Ali to make 2 fictitious and fraudulent credit entries in the SB a/c No. 8028 of Champa Sahu.WA 172/2014 Page 2 of 12
Charge No.4: Shri Pator connived with Shri S.J. Ali and allowed him to work in SB ledger No. 19 without any formal office order. Shri Pator also allowed Shri S.J. Ali free access to SB ledger control sheet which facilitated Shri Ali to post fake withdrawal slips and prepare a concocted ledger sheet destroying the original sheet in SB a/c 6335, Shri Pator passed all but two withdrawals deliberately overlooking that no pass book accompanied the withdrawal slips. Thus Shri Pator connived with Shri Ali to defraud the bank to the extent of Rs.3,45,900.00.
Charge No. 5: Shri Pator connived with S.J. Ali, CCGC, to allow him to work in SB ledger No. 2, inspite of Office order No. 32/94 dt. 17.10.1994 to work as Head Cashier till 06.11.1994 and thus facilitated Shri Ali to materially alter/manipulate the balances in SB a/c No. 974 of Shri A.C. Dey. He was also given free access to SB ledger control sheets. Shri Pator passed the cheques drawn on the a/c deliberately overlooking the material alteration /manipulation and thus connived to defraud the bank.
Charge No.6: Shri Pator connived with Shri S.J. Ali irregularly to work in SB ledger No. 2 and post cheques in SB ledger No. 2 materially altering the balance in the a/c. Shri Pator intentionally and motivatedly passed those cheques in SB a/c No. 974 and thus provided undue financial benefit to the customer at the expense of the bank.
Charge No. 7: Shri Pator factitiously debited cheque purchase a/c and irregularly and fraudulently credited to SB a/c No. 7861 of Shri J. Borah. Vouchers were prepared and singly signed by him. Further, Shri Pator irregularly and fraudulently transferred Rs.25,000/- on different dates to his own SB a/c No. 7664 for his personal gains and purposes exposing the bank to financial risk/likely loss.
Charge No. 8: Shri Pator manipulated bank's book of record by increasing Assam Pension Receivable debit voucher, unauthorisedly and fraudulently debited SB a/c 7861 of J. Borah & his own SB a/c 7664 to neutralize the debit balance in CP a/c which was previously debited by him fictitiously and fraudulently. thus, Shri Pator acted prejudicial to the interest of the bank and acted unbecoming of a bank officer.
Charge No. 9: Shri Pator manipulated bank's books of records and claimed Assam State Pension receivable in excess by Rs.9,900.00 which was later utilized by him for his personal gains and purposes. Thus he defrauded the Govt. of Assam and unduly exposed the bank to financial liability to the extent of Rs.9,900.00.
Charge No. 10: Shri Pator had irregularly and motivatedly passed 15 (fifteen) fake withdrawals in the SB a/c No. 6835 of Shri K.B. Singh where withdrawals were not accompanied by pass book.WA 172/2014 Page 3 of 12
Charge No. 11: Shri Pator had misused his authority as officer at UBI, Jorhat branch for his personal gains and benefits by fraudulently increasing CP voucher from Rs.35,269.49 to Rs.39,427.49 and crediting the increased amount to joint SB a/c no. 3059, with his wife and finally enjoyed the fund till 09.09.1995."
3. On 27.09.1997, the Enquiry Officer submitted his findings of the enquiry after considering the documentary evidence, the oral depositions of Management witnesses and contention raised by the appellant. As against each of the charges, he recorded as follows:
"
(1) The irregular nature of opening of S.B. a/c No. 8028 in the name of Mrs. Champa Sahu though stands proved through evidence of record, the charge of CSO's connivance with Shah Jamal Ali to defraud the Bank is not proved and hence the CSO is not guilty.
(2) The charge of passing withdrawal slips aggregating Rs.7400/- on different dates against ingenuine and unauthenticated balance stands proved & hence the CSO is guilty.
(3) Shah Jamal Ali a staff member being an insider restored to unlawful activities by giving fictitious credit entries without the knowledge of CSO but in so far as the entries dated 23.05.1995 are concerned the CSO's element of connivance is visible and to that extent the charge is proved and the CSO is guilty.
(4) Fake withdrawal slips without accompanied the passbook in SB a/c No. 6835 of Shri Kunja Behari Singh passed by CSO on a number of occasions and entries made by Shah Jamal Ali in ledger with simultaneous performance of works as Cashier without resistance/objection from CSO prove the element of connivance of CSO in the chain of numbers of transactions/withdrawals and hence the CSO is guilty.
(5) The increase in the brought forwarded balance than the actual, fictitious increase in credit balances on number of occasions and allowing debit without actual verification of correct balance stand proved and hence the CSO is guilty.
(6) Deliberate act of ignoring the factum of material alteration, drawing incorrect balance in the guise of correct balance, allowing Shah Jamal Ali to make entry in the ledger on the days when he was drafted for duties of cashier, prove the connivance of CSO with Shah Jamal Ali and Shri Amulya Chandra Dey who are mutually parties and privy to the irregular acts. Hence, the charge is proved and the CSO is guilty.
(7) The Cheque Purchase Account showing C.P. of Rs.4000/- on 13.12.1994 and Rs.10000/- on 19.12.1994 by CSO are fraudulent and fictitious. Similarly credit of Rs.25000/- in CSO's SB a/c 7664 through transfer debit from SB a/c 7861 of Sri J. Bora are also without any consideration except deriving personal gain. Hence, this charge stands proved and the CSO is guilty.
WA 172/2014 Page 4 of 12(8) Increase in Assam State Pension Receivable Debit Voucher by Rs.9900/-
without consideration stands proved and hence the CSO is guilty.
(9) After getting the reimbursement of the amount which includes excess of Rs.9900/-, the amount has been adjusted towards C.P. a/c which was fraudulently debited on 13.12.1994 and on 19.12.1994. Hence, the charge of manipulation of records, fraudulently defrauding the State of Assam through Pension reimbursement stand proved and hence the CSO is guilty.
(10) Passing of 15 fake withdrawal slips from 18.11.1994 to 23.06.1995 in the SB a/c. 6835 of Sri K.B. Singh of total Rs.3,34,900/- without accompanied by the Pass-book and thereby causing financial loss to the Bank is proved & hence the CSO is guilty.
(11) Misappropriation of Rs.4158/- for the period from 26.12.1992 to 08.09.95 by misuse of authority for personal gains and purposes stands proved and hence the CSO is guilty.
Consequently the charges of failure to take all possible steps to ensure & protect the interest of the bank and failure to discharge duties with utmost integrity, honesty, devotion and diligence; and acting in a manner unbecoming of an officer automatically stand proved in view of proved facts discussed hereinbefore and hence the CSO is guilty."
4. The appellant was afforded and he availed the opportunity to make reply to the findings in the Enquiry Report, copy of which was served upon him. Reply was made on 04.12.1997 and on consideration of the available materials on record, the Disciplinary Authority issued Order dated 23.12.1998 concurring with the findings of the Enquiry Officer and imposing upon the appellant the major penalty of "compulsory retirement with immediate effect" in terms of Regulation 4(h) of the Regulations. An appeal was preferred on 15.02.1999 before the Appellate Authority. According to the respondent Bank, the same was received at their end on 09.03.1999, which was after the expiry of the period of limitation of 45 days. The same was, therefore, not entertained. Challenge made to the order of penalty in the related WP(C) 3851/2006 came a cropper and the writ petition was dismissed vide judgment and order dated 03.01.2014. Hence the present writ appeal.
5. In the present appeal proceeding Mr. S.K. Medhi, learned counsel standing for the appellant/writ petitioner raised the following grounds of challenge:
WA 172/2014 Page 5 of 12(i) the disciplinary authority acted illegally in differing with and/or reversing the findings of the Enquiry Officer in respect of Charge No.1, which had been held in favour of the appellant, without assigning reasons and without first affording opportunity of hearing;
(ii) although there was no admission of guilt on the part of the appellant, the respondent Bank as well as the learned Single Judge held otherwise without there being any basis;
(iii) the letters of Shah Jamal Ali could not have been relied upon when in the enquiry proceeding Shri Ali was not produced as a witness, thereby depriving the appellant the opportunity to cross-examine Shri Ali; and
(iv) the punishment imposed was excessive and wholly disproportionate in the facts of the case.
Besides, Mr. Medhi also submits that on the same charges the appellant along with two others, including Shah Jamal Ali, were prosecuted in Special Case No.102/2004 under Section 120-B/420/471/468/477-A of the Indian Penal Code and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. In the said case, the Special Judge, CBI, Assam had acquitted the appellant vide judgment dated 22.06.2005. The other two accused were convicted. It is contended that the appellant had brought the matter to the notice of respondent authorities seeking exoneration in the departmental enquiry. Such request was not entertained. Submission made is that the continuance of the departmental enquiry had stood obviated on the appellant's acquittal in the criminal proceeding. As such, the order of penalty stood vitiated on this count alone. In support of all the contentions above, Mr. Medhi placed reliance in (i) (1998) 7 SCC 84 − Punjab National Bank v. Kunj Behari Misra; (ii) (1999) 7 SCC 739 − Yoginath D. Bagde v. State of Maharashtra; (iii) (2006) 5 SCC 446 − G.M. Tank v. State of Gujarat; (iv) (1996) 6 SCC 486 − State Bank of Bikaner & Jaipur v. Srinath Gupta and (v) (1993) 4 SCC 727 − Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors.
WA 172/2014 Page 6 of 126. Mr. S. Dutta, learned senior counsel representing the respondent Bank begins by saying that there was no reversal of Charge No.1 and, in fact, the findings thereon and the views of the Disciplinary Authority remained the same. In this context, reference is made to the letter dated 23.12.1998, being the order under challenge, to show that the Disciplinary Authority, as in the Enquiry Report on Charge No.1, held that the appellant by allowing the account in the name of Mrs. Champa Sahu to be opened irregularly, he had paved the way exposing the Bank to be defrauded when the account holder was not traceable. The Enquiry Officer, against Charge No.1, found that the irregular nature of opening of Saving Banks A/c No.8028 in the name of Mrs. Champa Sahu stood proved. It was only in respect of the charge of the appellant's connivance with Shah Jamal Ali to defraud the Bank was found not proved and the appellant not guilty. Mr. Dutta further submits that due to the act of misconduct of the appellant, the Bank suffered financial loss and also exposed the Bank to financial risk. The appellant had fictitiously debited Cheque Purchase Account, had manipulated books and records of the Bank, passed fake withdrawals, misutilized his power and authority for personal gain. The charges against the appellant were not casual in nature but serious. As a Bank Officer, the appellant was required to exercise high standards of honesty and integrity and to take all possible steps to protect the interest of the Bank. According to Mr. Dutta, breach of discipline and integrity has to be viewed in a strict manner and if a Bank Officer is found guilty of misappropriation, the punishment of dismissal would be an appropriate punishment, even in cases when misappropriated money is repaid. Mr. Dutta also submits that under no circumstances the order of compulsory retirement can be termed as excessive or disproportionate, having regard to the gravity of the offences. In fact, Mr. Dutta contends, the Bank authorities had been lenient in not dismissing the appellant from service. Mr. Dutta also argues that reliance placed in G.M. Tank (supra) cannot come the appellant's rescue and the contention put forth that the departmental enquiry had stood obviated on acquittal in the criminal proceeding is wholly misconceived in the facts and circumstances of the present case. Mr. Dutta cites the following case-laws in support of his contentions above: (i) (2003) 4 SCC 364 − Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar; (ii) (1996) 3 SCC 750 − State of U.P. v. Nand Kishore Shukla; (iii) (1996) WA 172/2014 Page 7 of 12 2 SCC 12 − ADM (City) v. Prabhakar Chaturvedi; (iv) (2007) 15 SCC 775 − Narendra Nath Bhalla v. State of U.P. and (v) (1996) 9 SCC 69 − Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik.
7. We have heard the learned counsel for the parties and have perused the materials on record. A good number of case-laws have been cited. We sift and proceed to deal with only those that stands for determination of the instant case.
8. The appellant has contended that sans reasons assigned and without first affording opportunity of hearing, the findings on Charge No.1 could not have been reversed to his detriment. Reliance is placed in Punjab National Bank (supra) and Yoginath D. Bagde (supra). We find that the findings of the Enquiry Officer on Charge No.1 has two parts - (i) the irregular nature of opening Savings Bank account in the name of Mrs. Champa Sahu, and (ii) the appellant's connivance with Shah Jamal Ali to defraud the Bank. Whereas the former was held to be proved, the latter was held to be not proved and appellant not guilty. Evidently, the appellant can only express grievance in respect of the first part. This finding on Charge No.1 was duly considered by the Disciplinary Authority and accepted. There was no reversal of the findings of the Enquiry Officer. The Disciplinary Authority, as regards the first part which was held to be proved by the Enquiry Officer, recorded rejection of the appellant's contention when he said that he had followed the practice of the Branch in allowing account to be opened under his single signature. By doing so, according to the disciplinary authority, he had paved the way for exposing the Bank to be defrauded through the said account when the account holder was non-traceable. The charge was, accordingly, held to be proved. The facts being such, the argument on reversal of Charge No.1 is far- fetched and misconceived. The case-laws, so relied upon, has no applicability in the facts and circumstances of the present case. The disciplinary authority did not differ with the conclusion reached by the Enquiry Officer as regards Charge No.1 and, therefore, the plea of violation of natural justice is wholly unfounded.
9. On behalf of the appellant, argument was also advanced as regards reliance placed on the letters of Shah Jamal Ali without producing him as a witness, thereby denying the appellant the opportunity to cross-examine Sri Ali.
WA 172/2014 Page 8 of 12The said letters of Sri Ali are marked as Mat. Exts. 3, 19, 20 and 21, being (i) letter dated 22.07.1995 addressed to the Regional Manager confessing introduction of account by him and acts of filling up of withdrawal forms, (ii) letter dated 15.07.1995 addressed to the Regional Manager, Jorhat containing statement of having committed fraud in Savings Bank accounts at UBI, Demow- Chariali Branch and informing about the participation of Indra Mohan Pator (appellant herein), (iii) letter dated 14.07.1995 addressed to the same authority confirming to have introduced the account and withdrawals being shared by himself, the appellant and the account holder, and (iv) letter dated 14.07.1995 where Sri Ali confessed preparation of the ledger sheet of SB A/c No.6835. Much emphasis is made on the letters dated 15.07.1995 and 14.07.1995 at (ii) and (iii) above to say that the said letters are legally inadmissible, in that, neither the author nor the addressee of the said letters appeared in the enquiry proceedings to testify and prove the contents of the letters. It is seen from the records that at no point of time the appellant denied knowledge of the contents or non-receipt of the letters which had been used at the inquiry. There is no material to show that despite the statements made by Sri Ali in the said letters, any endeavour had been made by the appellant to requisition the attendance of Sri Ali in the enquiry proceedings. The said letters were proved by one Sri Surath Chandra Sangmai, Ex-Manager, UBI of Demow-Chariali Branch, standing as MW-1. Even the said witness was not subjected to any cross-examination by the appellant on the veracity of the contents of the said letters. In these circumstances it cannot be concluded that any illegality had been committed by taking on record the contents of the letters in Mat. Exts. 19 and 20. The proceedings cannot stand vitiated on this count. Reliance placed in the case of State Bank of India (supra) for the proposition that the enquiry stood vitiated in not producing the author of the letters as a witness, thereby causing prejudice, do not come to the aid of the appellant in the facts and circumstances of the case.
10. As regards admission of guilt, to which the appellant stoutly denies, it is seen that Charge No.11 pertained to effecting a fraudulent credit of Rs.4158/- into the Savings Bank A/c No.30591 which the appellant held jointly with his wife at Demow-Chariali Branch. Records disclose that the appellant admitted to having WA 172/2014 Page 9 of 12 deposited the said amount in the account of the customer on the demand made by the authorities during his suspension period. Question arising, why would the appellant make the said deposit if he was innocent as he claimed. Mere repayment of money cannot absolve the appellant from guilt and this view finds support from para 6 of the case in Narendra Nath Bhalla (supra). Records also show that admission so made had been reiterated in the representation made by the appellant against the findings of the Enquiry Officer.
11. Submission was also made that the appellant had no earlier blemish in his service career and the defalcation on his part was not on the higher side. Also contended, the punishment was excessive and disproportionate. Not to forget, the appellant was an officer of a Bank and held a position of trust where honesty and integrity are inbuilt requirements. A bank officer deals with public money and the very discipline of a Bank is dependent upon the devotion and diligence which is to be conspicuously demonstrated by each of its officers. If it is a case of loss of confidence in the officer, the situation cannot be saved. It is in the realm of the disciplinary authority to consider what would be the nature of punishment to be imposed on a delinquent based upon proved misconduct. Its proportionality cannot be gone into by the Court unless the same operates as shockingly disproportionate. The Court would be loath to interfere with the order of penalty. This is not a case where the decision in imposing the penalty of compulsory retirement is tainted with mala fides or there had been breach of the principles of natural justice or a case of prejudice made out or the penalty is so disproportionate that it shocks the conscience of this Court.
12. Turning to the argument on the value of the outcome of the disciplinary proceeding vis-à-vis the acquittal in the criminal proceeding, law in this regard is precise and clear. Unmistakably, proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. In a departmental proceeding what chiefly operates in the mind of the disciplinary authority is the charge relating to misconduct, the enforcement of discipline and the level of integrity demonstrated by the delinquent. The standard of proof is also different than that required in a criminal case. While in the departmental WA 172/2014 Page 10 of 12 proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved beyond all reasonable doubt. Indeed, an exception is carved out where the proceedings in both are based on the same set of facts and the evidence in both the proceedings is common without there being any variance. This is not to say that departmental proceedings and proceedings in a criminal case cannot proceed simultaneously. In the case at hand the document at page 137 is the order dated 22.06.2005 in Special Case No.102/2004. No other document as regards the criminal case is enclosed. There is a one-liner in the said order holding that the accused Sh. I.M. Pator (appellant) is not found guilty. There is no material to suggest that on the charges framed the evidence, witnesses and circumstances were one and the same. It cannot be held that facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference. There is also no material to suggest that the appellant had been honourably acquitted so as to take away the discretion vested on the authority in continuing and bringing the departmental enquiry to its logical conclusion. The nature of the acquittal by the criminal court could not have precluded the respondent Bank from taking action in accordance with the Rules and Regulations of the Bank in force. As alluded to above, both the proceedings operate in different fields and have different objectives. Whereas the object of the criminal trial is to inflict appropriate punishment on the offender, the purpose of a departmental proceeding is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. Acquittal in the criminal case is not determinative of the commission of misconduct or otherwise and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in the criminal case. It per se would not entitle the delinquent to claim immunity from the proceedings. At the most, the factum of acquittal may be a circumstance to be considered while awarding punishment. It would certainly depend upon the facts of each case and cannot have universal application. Perhaps, the extreme punishment of dismissal from service was not inflicted on this ground. From the discussion above, we are unable to hold the contention of the appellant that since he was acquitted by a criminal court, the order compulsorily retiring him from service deserves to be quashed and set aside.
WA 172/2014 Page 11 of 1213. Breach of discipline in a banking organization is a misconduct which requires to be dealt with iron hands. Where an officer deals with public money or is engaged in financial transactions, demonstration of the highest degree of integrity and trustworthiness is a must and unexceptionable. If it is a case of loss of confidence in the officer by the Bank, it would not be in the scheme of things for this Court to embark upon an exercise of judicial review to interfere with the decision of the disciplinary authority and to direct the Bank to take back the officer in whom the Bank has lost confidence. The parameters within which interference can be made are wholly absent in the present case.
14. In the light of the above, this appeal being devoid of merits, is accordingly dismissed. There will be no order as to costs.
JUDGE CHIEF JUSTICE
Benoy
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