Calcutta High Court
Subhendu Sengupta vs Central Bank Of India And Ors. on 24 November, 2005
Equivalent citations: [2006]145STC620(CAL)
Author: Vikas Shridhar Sirpurkar
Bench: Vikas Shridhar Sirpurkar
JUDGMENT Vikas Shridhar Sirpurkar, C.J.
1. This appeal is directed against the judgment of the learned Single Judge of this Court dismissing the writ petition filed by the petitioner. In that writ petition the petitioner had challenged his dismissal from the service as a Clerk in the Bank after a departmental enquiry was held against him.
2. The petitioner/appellant was working at the relevant time in Bhukailash Branch of the Central Bank. A chargesheet came to be filed against him dated 2nd July, 1993 alleging, inter alia, that though he had received an amount of Rs. 1,13,136.85/- under five heads and though he was duty bound to deposit the same, he did not actually deposit the entire collected money with the Bank. In the chargesheet it is suggested that in place of depositing the collected amount stated above, he deposited merely Rs. 67,998.46p. and thus he had committed the defalcation. Ultimately, this chargesheet came to be corrected vide a corrigendum where it was suggested that the amount of Rs. 9,069.83p. shown in the chargesheet as the deposited amount should be read as Rs. 12,559/-. In short by the corrigendum it was suggested that he had committed a defalcation of Rs. 41,539.30 paise and not Rs. 45,139.39 paise as originally stated. A full-fledged enquiry was proceeded against the appellant/delinquent officer. Initially his explanation was called in writing. It seems that he sought for time but did not give a complete explanation and instead chose to give a statement regarding the amounts which he had in fact deposited. However, there does not appear to be a defence statement made. Ultimately, the evidence was laid against him during the enquiry wherein two witnesses were examined. These witnesses were allowed to be cross-examined also and ultimately a written explanation was asked, which explanation seems to have been given by the appellant and after consideration of the overall facts and evidences, the punishment of dismissal was handed out. The petitioner filed a writ petition against this punishment. However, the writ petition came to be dismissed.
3. Learned Single Judge firstly held that the departmental enquiry was conducted in a proper manner in keeping with the principles of natural justice inasmuch as the delinquent officer was given full opportunity to take part. The learned Judge also came to the conclusion that the result of the other departmental enquiry against one Nripendra Nath Sarkar who had earlier served in place of the petitioner had got nothing to do with the present enquiry and the judgment of the learned Single Judge in the case of Nripendra Nath Sarkar in C. O. No. 10234 (W) of 1996 was irrelevant for the purpose of deciding the present case. Lastly the learned Single Judge went into the merits and came to the conclusion that though the petitioner had collected various amounts, he had failed to deposit the said amounts or had even failed to give any accounts regarding the shortages. The learned Judge found that the explanation of the delinquent officer that he had spent some amounts was not proved and was rightly held not to be proved by the Enquiry Officer and that no material was brought before the Court to suggest that there was any prejudice caused to the delinquent officer on account of non-supplying the documents which he had asked for.
4. The learned Judge also found that the delinquent officer had deliberately absented himself without any explanation and that he had not bothered even to examine any defence witnesses and that the Enquiry Officer had rightly proceeded, ultimately seeing that the delinquent officer or his defence representatives were repeatedly absent.
5. Before us the learned Counsel Mr. Mukherjee very vehemently attacked the judgment of the learned Single Judge as also the department proceedings. Mr. Mukherjee urges firstly that it was not properly proved or proved at all that the petitioner was duty bound to deposit the amounts and that he had failed to do so. Learned Counsel suggested that it was not at all proved that the amount as alleged Rs. 41,000/- approximately had remained to be deposited. The explanation of Mr. Mukherjee is that in fact in the subsequent enquiries it was found that there was some extra amount lying with the Bank and as such, according to Mr. Mukherjee the accounting in this Bank was not proper and it could not be said that it was proved that there was a defalcation at the hands of the delinquent officer. In support of his argument Mr. Mukherjee very heavily relied on two facts--1) the judgment of Justice Samaresh Banerjea in the case of Nripendra Nath Sarkar and 2) the fact that one officer Shri Bikram Singh Buxala was let off on the ground that the accounting in this Bank was not perfect. Mr Mukherjee then proceeded to argue that the enquiry could not be said to be fair and proper because in spite of the demand of some vital documents the said documents were not supplied to the delinquent officer or to his defence representatives. According to Mr. Mukherjee this caused a great prejudice to the defence of the delinquent officer, and as such, the enquiry was liable to be quashed as being contrary to the principles of natural justice and fair play. Lastly Mr. Mukherjee urged that at any rate the punishment was more severe than necessary because it was reported that the allegedly defalcated amount had been as it is that the amount would be recovered from the delinquent.
6. As against this Mr. Kar took us extensively through the records and pointed out that the enquiry was extremely fair and proper. According to Mr. Kar the documents demanded by the delinquent officer were irrelevant and a clear cut finding to that effect was given by the Enquiry Officer and that there was no concern whatsoever of Shri Nripendra Nath Sarkar's case with this enquiry. According to Mr. Kar what happened in Nripendra Nath Sarkar's case was wholly irrelevant in so far as the present appellant is concerned.
7. We shall firstly take into consideration as to whether it can be said that there was proper accounting in this Bank as alleged by the learned Counsel. It will have to be seen that the period between which the petitioner worked is 14th September, 1992 to 18th February, 1993. While working the petitioner was supposed to collect the amounts from the Estate which was under the management of the Bank called "Bhukailash Estate". The bank used to collect the rent received from the shop owners. Secondly, it used to sell coupons for allowing some persons to do their business on daily basis in the said estate. Thirdly, it used to collect the security deposit from those persons who were allowed to do their business. Fourthly, it used to collect mutation fees as often the persons doing their business used to either leave the premises in favour of others and lastly, it used to collect the rent from the bustee. The appellant/delinquent officer was at the relevant time posted and it was under his supervision, these recoveries were made. It is nowhere denied by the delinquent officer that he was not working at the place during the relevant time. There is no denial also on the part of the appellant that it was not his duty to collect the amount. Mr. Mukherjee haltingly suggested that the duties of the appellant were not proved and it was not proved that he was duty bound to collect the amount. We, however, fail to understand as to then what other duty could be there on the part of the appellant if the Bank was managing the said estate through the delinquent officer. Nothing was shown by the learned Counsel that the accounting at least regarding these recoveries was defective. Nothing was even suggested to the witnesses of Bank during enquiry. We fail to understand as to how the complaint could be made in a general manner against the maintenance of accounts. Such is not the defence.
8. It is apparent that the Bank had the authority to manage the aforementioned estate and collect the usufructs therefrom. It goes without saving that as the person heading the establishment of the Bank the petitioner would be responsible for depositing the amounts which were collected for the Bank. It is nowhere suggested that though the amounts were deposited those were not credited. Fortunately all the minutes of the enquiry are produced before us though very surprisingly the enquiry report was not been produced before us at all by the appellant. It is reported that such report has not produced even before the learned Single Judge. It has nowhere come and the learned Counsel was not able to show as to which particular account was not maintained and what was the nature of irregularity in maintenance of accounts. The learned Counsel merely relies on the fact that the officer called Bikram Singh Buxala was let off on the ground that there could be some discrepancy in the accounts. We refuse to look into the matter of Bikram Singh Buxala and nothing has been brought before us to suggest that Shri Buxala was let out only on that ground. From the materials produced before us we do not find anything to suggest that the Bank accounts were not properly maintained. In fact it seems that the enquiry was done in an elaborate manner giving every possible opportunity to the delinquent officer and his defence representatives to put questions. From the minutes of the enquiry it is apparent that the defence representative have cross-examined two witnesses in extenso and was allowed to see all the documents relied upon by the prosecuting agency. All the details are before us and we do not see any reason to hold that there was anything wrong with the accounting in this Bank or that it was not the duty of delinquent to deposit the recovered amounts in the Bank.
9. We cannot forget that this was a simple matter where the petitioner was responsible for depositing the collected amounts with the Bank. We do not see any denial that the petitioner had in fact collected those amounts because the factum of collection had been proved by the documents during the enquiry. All the documents do suggest that the amounts were collected. The further allegation is that the petitioner had not deposited the full amount or made only to short deposits. Nothing has been brought on record that the petitioner had actually made the accounts but that were not reflected to his credit in the Bank. The further defence appears to be that the delinquent officer had spent some amounts for prosecuting the legal proceedings on behalf of the bank. It was very haltingly suggested that the appellant had made the payment of the Court-fees, he had also made the payment of the other charges required for making mutation etc. and in fact the documents sought for by him were in respect of those expenditures. Mr. Mukherjee urged that non-supply of these documents was fatal to the enquiry and, therefore, we directed Mr. Kar to address us specially in respect of the documents which were sought for by the delinquent officer and were not supplied.
10. Our attention was invited to an order passed by the Enquiry Office dated 15th June, 1994. From the order passed it was suggested that the documents at Serial Nos. 1, 2, 4, 5, 6, 7, 8, 9,11 and 27 were sought for by the delinquent officer. However, the Enquiry Officer has recorded an explanation of the presenting officer to the effect that these documents only related to the expenditure made and such expenditure was reflected in the other accounts maintained by the Bank. It was pointed out that if the expenditure was reflected in the other accounts of the Bank there would be no question of credit being given for that expenditure and debiting the same from the amounts collected. It is apparent from the order passed that these documents had no concern whatsoever and they were wholly unrelated documents.
11. We are satisfied from the order passed at Page 202 on 15th June, 1994 that the Enquiry Officer had correctly rejected the request for these documents holding that the documents sought for were merely suggestive of the expenses made and had nothing to do with the deposits. Mr. Kar further pointed out that even if these documents had been taken into consideration it is nowhere seen by the delinquent officer that the total expenditure made would have taken care of the amount of Rs. 41,000/- (approx.) which amount was allegedly defalcated. He further pointed out that there is no nexus established between these expenditures and the amount defalcated. He also pointed out that the delinquent officer has nowhere claimed that the expenditures were not reflected in the accounts of the Bank and no attempt was made at the enquiry to call the accounts of the Bank in respect of these expenditures allegedly having been made by the delinquent. We are, therefore, convicted that there was nothing wrong with either the accounting in this Bank and further that there was no prejudice caused to the delinquent officer by the failure on the part of the enquiry officer to supply these documents.
12. This will go to suggest that a full opportunity was given and the contention raised that no opportunity was given to the delinquent officer cannot be accepted. It is then seen that after this the delinquent officer and his representative remained absent and, thereafter, they did not take part in the enquiry nor did they file any documents etc.
13. What is required to be seen while considering the merits and demerits of the departmental enquiry is the manner in which the departmental enquiry had been conducted. The law is now well-settled that where there is incriminating material found against the delinquent and is brought on record, there would be no question of the High Court going into the correctness or otherwise of the finding. A very strong case would have to be made out to suggest that the findings were perverse or non-sustainable. This was a simple case where the Bank had proved that the amounts were collected and that the petitioner was responsible for depositing the collected amounts in the Bank and that he had not deposited the whole of the amounts which were collected. That material was amply brought to surface during the departmental enquiry and, therefore, there will be no question to hold that there was no material and the finding of the enquiry officer was perverse in any manner.
14. The learned Single Judge rightly approached the matter more particularly in the light of the law laid down in the case of High Court of Judicature at Bombay v. Shashikant S. Patil , as also in the case of Kuldip Singh v. Commissioner of Police and Ors. . We, therefore, do not find any error on the part of learned Judge's approach. We have also examined very closely the minutes of the enquiry and we find that no fault can be found with the same inasmuch as all the relevant documents have been supplied to the delinquent officer, full opportunity was given to the delinquent to take part and cross-examine the witnesses and all the contentions have been considered in a reasonable manner by the enquiry officer.
15. We are, therefore, unable to agree with the contention raised at the Bar by Mr. Mukherjee that the enquiry was against the principles of natural justice. Lastly, Mr. Mukherjee had urged that in the matter of Nripendra Nath Sarkar, a Single Judge of this Court had found the enquiry to be a fased and had adversely commented against the nature of the enquiry as also the findings reached by the enquiry officer. The learned Counsel is at pains to point out that the enquiry officer in respect of Nripendra Nath Sarkar was the same officer who conducted the enquiry here also. We fail to see as to how the enquiry in the case of Nripendra Nath Sarkar even if it was found to be defective or biased would entail the same results in case of the present appellant. The learned Judge has pointed out that firstly the judgment of the learned Single Judge (Banerjee, J.) on which very heavy reliance was placed was not confirmed as it is by the Division Bench. Instead the Division Bench directed a fresh enquiry by some other officer. Secondly it is seen by the learned Judge that the question of bias was raised during the enquiry by Shri Nripendra Nath Sarkar. But that was not headed to. The interference was made by Justice Banerjea on the further ground that an important witness was not allowed to be cross-examined, his name being Ram Kebal Kahar and that the petitioner in that case had made number of complaints during the enquiry that his requests were not being entertained or appreciated because of bias. We do not see as to how the enquiry in the case of Nripendra Nath Sarkar would be in any manner relevant to the present enquiry because the present appellant had not raised even a murmur against the enquiry officer nor had he complained in any manner against the way the enquiry was going on. There is nothing on record as a matter of fact to suggest that the petitioner had in any manner shown his decence with the manner in which the enquiry is going on. We, therefore, do not accept the contention raised by Mr. Mukherjee that since the enquiry in the case of Nripendra Nath Sarkar was quashed, the same results should have followed in this enquiry also.
16. Lastly, Mr. Mukherjee urged on the question of severity of the punishment. According to him the punishment was more severe than necessary. We do not agree. It will not for us to go into the quantum of punishment unless it is found to be disproportionate to the misconduct. Here was misconduct by a Bank Officer. He had committed a defalcation in respect of Rs. 41.000/- (approx.). We do not think that under the circumstances the punishment awarded was in any manner disproportionate to the misconduct. In short we do not find any merits in this appeal but proceed to dismiss the same but without any order as to costs.
Arun Kumar Mitra, J.
17. I agree.