Mohd. Atique Ansari vs State of U.P. and Others

S.N. Srivastava, J.—Impugned herein is the order dated 25.4.2003 by which the Petitioner was reverted from the post of Senior Assistant/Junior Branch Manager (Category II) to the post of Clerk/Cashier Category III followed by deduction of Rs. 4000/- per month from his salary.

The facts forming background to the present petition are that the Petitioners alongwith others misappropriated a sum of Rs. 2,09000/- The defalcation intruded upon the notice of the Bank as a result of complaint made by one Adhyaksh Lal Jeevan. A fact-finding preliminary enquiry was set afoot by the Bank appointing one Sri J.S. Chauhan Senior Manager (Vikas) as the enquiry officer by means of the order dated 6.7.2001 requiring him to scrutinize the record and submit his report by 9.8.2001. In the report submitted by Sri J.S. Chauhan, the Petitioner was imputed with being privy to embezzlement to the tune of Rs. 2,09,000/- alongwith others and in relation to embezzlement to the extent of Rs. 6000/-, the report pointed accusing finger at the Petitioner stating that he embezzled the said amount individually to the exclusion of others. It transpires from the record that the modus operandi adopted by the Petitioner and others in defalcation of the amount was by scoring and altering the amount in the cheques submitted to the Bank (details of date and amount enumerated in the enquiry report). As a sequel to this report, the Petitioner was suspended from service in contemplation of disciplinary enquiry by means of the order-dated 16.8.2001. One Sri P.S. Valyan Section officer was appointed as enquiry officer. As many as 14 charges were listed against the Petitioner in the charge-sheet all revolving round financial irregularities. The enquiry was taken to finality vide enquiry report dated 5.6.2002 and all the charges were brought home to the Petitioner. The said report was then placed before the Managing Committee for consideration on 5.6.2002. The Managing Committee again met on 16.11.2002 in which the matter again received consideration and after hearing the Petitioner, it was consensually decided to enjoin the Petitioner to deposit Rs. 47500/- in lump sum and the remaining amount be recovered in 12 equal instalments from the salary of the Petitioner followed by decision that the Petitioner be reverted consequence of the aforesaid decision, a show cause dated 2.12.02 notice was served to the Petitioner to which he submitted his reply on 20.12.2002 with accompanying receipt in token of deposit of Rs. 47500/-. In his reply, the Petitioner sought indulgence that the remaining amount of Rs. 52000/- be adjusted against the bonus amount, arrears of suspension allowance and other claims due to him and further that he may be reinstated in the service. In the self-same representation, the Petitioner ventilated his grievance that one Har Sumran Lal, the then Branch Manager had been similarly insinuated of committing embezzlement but he was not proceeded against till his death and was rather let off without any disciplinary enquiry and the embezzled amount which he was ascribed to have embezzled, was adjusted against the claims due to him and he was shown undue indulgence as compared to the Petitioner, by taking one of his sons in the service of Bank. It is in this background that the Petitioner has challenged the validity of the impugned order.

I have heard learned Counsel for the Petitioner and Sri B.P. Singh, learned Counsel representing the Bank authorities. The learned Counsel for the Petitioner began his submission stating that the impugned order has been passed in breach of the principles of natural justice. He further canvassed that the finding recorded by the enquiry officer was not warranted by the facts and evidence on from the post of Senior Asstt./Junior Branch Manager to the post of clerk/Cashier. It further transpires from the record that the Petitioner acquiesced to the decision on condition that he may be reinstated in the service of the Bank. As a record and as such there is element of perversity permeating the entire finding. He further canvassed that the disciplinary authority erred in toeing the decision taken by the Managing Committee and as such the order of the disciplinary authority suffers from the vice of non-application of mind.

It is not disputed that the Petitioner required copies of certain documents by means of letter dated 8.2.2002 and subsequent letter dated 7.3.2002, It is eloquent from the record that the Petitioner was formally apprised that most of the documents copies of which were sought for by the Petitioner had already been supplied to him along with the charge-sheet and for the remaining documents, he was called upon to approach the Ramnagar Branch of the Bank and inspect the required records. It would be explicit from the letter-dated 14.3.2002 that the Petitioner rummaged through day book, cash book etc. but delayed filing his reply. The reply ultimately came to be filed on 20.4.2002 by the Petitioner. From a close scrutiny of the reply, it does not appear that it contained any grouse of his being denied opportunity of hearing, or inspection of any of the documents, it is ex-facie implicit from a perusal of the various papers on record that the Petitioner never complained that he was denied active participation in the enquiry or that he was stymied in adducing of evidence which he wanted to adduce in aid of his defence. It would rather appear that the Petitioner submitted himself to the decision of the Managing Committee on the condition that he should be taken back in service. It is not refuted that he was not called upon or heard by the Managing Committee or he was denied opportunity of hearing in the course of enquiry. From a perusal of letter dated 12th Sept 2002 issued by Secretary/General Manager, it would crystallize that the Petitioner was afforded opportunity of personal hearing as well and as a sequel, he appeared and submitted himself to the condition of depositing a sum of Rs. 47500/- in cash and the remaining amount he sought to be deducted every month in 12 instalments from his salary. In the fact-situation, the order passed by the disciplinary authority appears to have been passed in the conspectus of consideration of entire facts and circumstances and also taking into reckoning the fact that the Petitioner had acquiesced willingly to the decision of the Managing Committee on condition of his being taken back in service. It also appears from the record that he also acquiesced to the decision of his being reduced in rank. There is nothing on the record to indicate that the Petitioner was constrained or pressurized into agreeing or acquiescing to the decision of the Managing Committee or even if it be assumed that the Bank took advantage of his demoralized state, no such constraints were pressed into service in his reply by the Petitioner and the only grievance articulated by the Petitioner was that his request for adjusting the remaining amount of Rs. 52000/- against claims which might accrue to him in the post reinstatement stage, was not nodded in approval. In the circumstances, there is nothing in evidence to shore up the submission pressed into service on behalf of the Petitioner at this stage that he was denied opportunity of hearing or was not allowed participation in the enquiry or there was any arbitrary approach or attitude in reaching the decision by the disciplinary authority.

The main relief claimed in the petition is the relief of quashment of the impugned order. It is settled view that the Court should not interfere with the administrator''s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court implying that it was in defiance of logic or moral standards. As a matter of fact, the judicial review is confined to the defects and deficiency or infirmity in the decision making process and not the decision. In this connection, analogy may be drawn from a similar case dealt with by Hon. Apex Court in C.M.D. United Commercial Bank v. P.C. Kakkar 2003 All. L.J. 812. In this case, the Apex Court was concerned with the question of quantum of punishment. In that case, one of the points highlighted was that in a similar situation, lesser punishment was imposed on one M.L. Keshwani though the allegations against him were of much serious nature. In para 14 of the said decision the Apex Court gave expression to the following observations.

A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank.

The Apex Court placed credence on Disciplinary Authority-cum-Regional Manager and Others Vs. Nikunja Bihari Patnaik, and observed that it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere, acting beyond one''s authority is by itself a breach of discipline and is a misconduct. Reverting to the instant case, as stated supra, as many as 15 charges have been listed against the Petitioner and all the charges pertain to financial irregularities and embezzlements. It is apparent from the record that modus operandi adopted by the Petitioner was to do scoring, additions and alterations in the cheques submitted to the Bank and the amount embezzled at the time of detection aggregated to a hefty amount of Rs. 2,09000/- out of which the Petitioner was imputed to have appropriated to his use a sum of Rs. 99500/-. The Petitioner was granted personal hearing and it is borne out from the record that he acquiesced to the decision and the punishment proposed by the Managing Committee. He also did not demur to charges which were established in the enquiry and his grievance revolved round the fact that the indulgence sought by me was denied. The grounds urged in vindication of the relief claimed in this petition appear to have been pressed into service here in this petition and therefore, the grounds canvassed for quashing of the impugned order are spurious and cannot be acted upon for interference with the impugned order. The underlying object in filing the present petition appears to be to assail the aspect of punishment awarded to the Petitioner and the flimsy grounds have been set up as the causative factor for challenge. In the circumstances, the charges were of very serious nature and were not shocking to the conscience of the Court so as to warrant interference with the impugned order or on the aspect of punishment dealt out to the Petitioner in the instant case. The Bank has already treated the matter with utmost leniency and it no more calls for further benignancy having regard to serious delinquency of the Petitioner.

As regards the submission that enquiry ordered, suffers from the taint of perversity, it should be noticed that initially preliminary enquiry was ordered which pointed accusing fingers at the Petitioner and others. Consequently, disciplinary enquiry was ordered. The learned Counsel for the Petitioner has not been able to bring home the fact that the Petitioner was not afforded opportunity of hearing or was denied participation. It would rather appear that the Petitioner actively participated in the enquiry and the reply submitted to the charge sheet is eloquent of his participation in the enquiry. It also transpires from letter dated 12th Sept 2002 that the Petitioner was shown indulgence of personal hearing as well. By this reckoning, it leads to irresistible conclusion that the enquiry report does not wear the taint of any infirmity nor is there any element of perversity pervading the finding recorded by the enquiry officer. The finding recorded by the enquiry officer is borne out from the record. The last contention that provisions of Regulations 85 of the U.P. Cooperative Societies (Employees Service) Regulations, 1975 were not complied with does not commend to me for acceptance in view of the fact that the impugned order received consideration and approval of the U.P. Cooperative Societies Institutional Board Lucknow.

As a result of foregoing discussion, the petition fails and is accordingly dismissed in limine.