Gauhati High Court
Ashish Kumar Goon vs Canara Bank Managing Director And Ors on 17 September, 2013
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH
BEFORE
THE HON'BLE MR. JUSTICE L.S. JAMIR
W.P.(C) No. 6377/2005
Sri Ashish Kumar Goon ..... Petitioner
VERSUS
The Canara Bank and others ..... Respondent.
For the Petitioner : Mr. B.R. Dey, Sr. Advocate
For the Respondent : Mr. S. Chamaria, Advocate
Date of hearing : 05-09-2013
Date of Judgment : 17-09-2013
JUDGMENT AND ORDER (CAV)
1. Heard Mr. B.R. Dey, learned Sr. Counsel appearing on behalf of the petitioner as well as Mr. S. Chamaria, learned counsel for the respondent Bank.
2. The case of the petitioner is that while he was serving as Special Assistant in the Canara Bank at Sikh Temple Branch, he received a letter dated 26-08-2002 from the respondent No. 2 stating that he had committed serious irregularities in the Suspense Deposit Account. The said irregularities was noticed at the time of creation of master data for computerization of the Sikh Temple Branch and the Suspense Deposit Account was not tallied since 30-09-2009 and there was difference of Rs. 18,522/- in the account. An investigation was conducted and it was found that by letter dated 29-06-2001, one Mr. Dilip Das requested to pay back Rs. 18,522/- through Pay Order as he deposited a cheque on 02-08-1989 without writing the account number in the pay-in-slip and the same was kept in Suspense 2 Deposit Account of the branch for want of full particulars. On the top of the said letter, the Senior Manager has specifically mentioned to verify old records and then credit. On 30-06-2001, the petitioner prepared the debit slip for debiting Rs. 18,522/- to Suspense Deposit Account and also credit slip for the DD favouring Shri Dilip Das for Rs. 18,522/-. The transaction was put through on 02-07-2001. The debit slip for debiting Rs. 18522/- to Suspense Deposit Account was made towards the below mentioned credit items:
. "Date of Credit Amount
02-08-1989 Rs. 3,000.00
02-08-1989 Rs. 3,000.00
02-08-1989 Rs. 3,000.00
02-08-1989 Rs. 1,500.00
02-08-1989 Rs. 8,000.00
02-08-1989 Rs 22.00"
The credit slip for the same amount for preparing DD favouring Shri Dilip Das was also prepared by the petitioner. However the said amounts were already reversed during August-September, 1989 and credited to the following accounts:
"Details/ Name Type of Trains Amount Adjusted on Adjusted to T. Singh Clearing 3,000.00 05-05-89 SB 539 B.C. Baid Clearing 3,000.00 06-09-89 SB 537 B.K. Sharma Clearing 3,000.00 06-09-89 SB 1130 S.D. Singh Clearing 1,500.00 06-09-89 SB 41 U.C. Medhi Clearing 8,000.00 03-08-89 SB 491 D.C. Jain Clearing 22 03-08-89 To Clearing Cheque returned"
Further it was also revealed that no person namely Shri Dilip Das was residing at the address given in the letter dated 29-06-2001.
3. On 17-08-2000, while the petitioner was working as Supervisor of the Current Account Department there was a casting mistake in CA No. 1925 of Ms. Ishu Sales Corporation resulting in debit balance of Rs. 1,97,327.87/-. The amount was gradually repaid by the parties and the sum of Rs. 22,143/- was debited to the account till 30-06- 3 2001 as TOD interest. On 05-07-2001 DD dated 02-07-2001 in favour of Shri Dilip Das was received by the petitioner at the branch with credit challan for credit to CA No. 1925 of Ms. Ishu Sales Corporation. The amount of Rs. 18,522/- was credited to the account of Ms. Ishu Sales Corporation on 06-07-2001. The draft for further amount of Rs. 7,000/- was recovered by way of cash on 07-07-2001 and the Current Account TOD including interest was regularized. The petitioner was found to have failed to adhere to the instructions of the Sr. Manager to verify the old records before debiting the Suspense Deposit Account. The petitioner had also accepted the DD issued in favour of Shri Dilip Das for credit to the CA No. 1925 of Ms. Ishu Sales Corporation. It was also revealed that the petitioner has addressed a letter dated 04-07-2001 to Mr. Manoj Tekriwal, Proprietor of Ms. Ishu Sales Corporation in the capacity of the Branch Manager giving a commitment regarding waiver of interest of Rs. 18,000/- in case the balance amount of Rs. 7,000/- is paid by the party on or before 10-07-2001. It was found that petitioner had unauthorisedly issued letter dated 04-07-2001 and the petitioner had misused the official position in the bank by committing fraud in the book of the bank and writing letter unauthorisedly in the capacity of the Manager, thereby exposing the bank to financial loss.
4. By letter dated 26-08-2002, the petitioner was called to submit explanation which was accordingly done by the petitioner on 20-09- 2002. On further facts being discovered, another explanation letter dated 07-10-2002 was issued to the petitioner and the petitioner replied to the same on 17-10-2002. The authorities not being satisfied with the reply dated 20-09-2002 and 17-10-2002, charge-sheet dated 13-11-2002 was issued to the petitioner. A departmental enquiry was conducted and the Enquiry Officer submitted his findings by his reply dated 14-06-2003 holding the petitioner guilty of the charges. The findings of the Enquiry Officer was also furnished to the petitioner. The petitioner submitted his reply dated 09-07-2003 against the findings of the Enquiry Officer. The Disciplinary Authority after 4 considering the reply of the petitioner as well as the findings of the Enquiry Officer, the punishment of compulsory retirement was imposed upon the petitioner by memo dated 27-09-2003. Being aggrieved, the petitioner preferred an appeal against the said punishment. The Appellate Authority after hearing to the petitioner, rejected his appeal by order dated 30-12-2004. Hence the instant writ petition.
5. Mr.B. R. Dey, learned Sr. counsel submits that the debit slips were signed by the then Sr. Manager, Shri T.K. Dasgupta and the said Shri T.K. Dasgupta was also cited as management witness but the bank did not examine him. In the absence of examination of Shri T.K. Dasgupta, the petitioner could not have been held guilty. The management witness No. 4 Shri D.K Paul had stated that during his tenure at the branch the consolidated entry in the S.D. main head in the subsidy was not rounded off, which was contradiction to what he had orally stated. The said witness had also stated that the petitioner was one of the excellent employee of the branch. Mr. Dey submits that the witness No. 5 had stated that the petitioner has not pocketed the money but had mal-adjusted the accounts and therefore in the absence of mens-rea, just because of some minor negligence the petitioner can not have been imposed the said penalty. He also submits that the wrong balance in a Ledger was due to clerical error and the petitioner is not responsible for such errors and that if any mistake had been committed by the petitioner, the same were done on the basis of the advise given by the then Sr. Manager. He submits that any action of the petitioner was done in good faith to protect the interest of the bank and as per direction of the Sr. Manager Mr. T.K. Dasgupta. He also submits that the departmental authority had wrongly passed the order of compulsory retirement inasmuch as compulsory retirement can be imposed only in cases of gross misconduct. However in the case of the petitioner no gross misconduct has been committed by him. He therefore submits that the order of the compulsory retirement should be set aside and 5 quashed and the respondent be directed to reinstate the petitioner back in service and further places reliance in the case of (a) Kailash Nath Gupta Vs. Enquiry Officer (R.K. Rai) Allahabad Bank and others reported in AIR 2003 SC 1377 at paragraphs 11 and 12, (b) (1998) 7 SCC 310 M.S. Bindra Vs. Union of India at paragraph 13 and 2005 SCC (L&S) 728 Pritam Singh Vs. Union of India at paragraph 7, 9, 13, 14, 15, 17, 18, 19 and 20.
6. Mr. S. Chamaria, learned counsel appearing for the respondent bank submits that the petitioner has misused his official position in the bank by committing fraud in the books of the bank and writing letter unauthorisedly in the capacity of the Manager thereby had exposed the bank to financial lost. The petitioner was given all opportunity as provided as per norms and procedures and therefore no fault can be found in the order of the Departmental Authority imposing the penalty of compulsory retirement to the petitioner. He also submits that this court sitting under Article 226 of the Constitution of India can not sit as Appellate Authority against the order passed by the Departmental authority as well as Appellate Authority and places reliance in the cases of (a) S.R. Tiwari Vs. Union of India reported in (2013) 6 SCC 602 at paragraph 13, 14, 15, 16 and 18 (b) State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya reported in (2011) 4 SCC 584 at paragraph 6, 7 and 8 and (2009) 15 SCC 620 at paragraph 17, 18, 19, 20 and 21. He therefore submits that in the absence of any arbitrary action, malafide or violation of any statutory regulation and extraneous consideration, the order of compulsory retirement should not be interfered with and the writ petition be dismissed.
7. I have heard the learned counsel appearing for both the parties. In the case of Pritam Singh Vs. Union of India, supra, the appellant has supplied absentee statement to one of the employee which was neither confidential document nor privilege document. The Hon'ble Supreme Court had come to the finding that no material on record 6 was placed before the Disciplinary Authority, Appellant Authority, Revisional Authority, Tribunal and before the High Court to reasonably form an opinion that compulsory retirement was in public interest. It was also held that the case was not a case of doubtful integrity.
8. In the case of M.S. Bindra Vs, Union of India, the Hon'ble Supreme Court held that there was utter dearth of evidence for the Screening Committee to conclude that the appellant had doubtful integrity. Similarly in the case of Kailash Nath Gupta Vs. Allahabad Bank, the Hon'ble Supreme Court had found that after considering article of charges had come to the finding that at most there was some procedural irregularities which could not be termed as negligence to warrant the punishment of dismissal from service in respect of the appellant.
9. This court is of the considered opinion that the aforesaid citations relied by the petitioner does not assist him inasmuch as the same are not applicable to the present case.
10. On consideration of facts and circumstances of the case this court is of the opinion that no interference is called for and the writ petition is accordingly dismissed.
No cost.
JUDGE GS