Shri Komal Singh vs Central Bank of India

Ashis Kumar Chakraborty, J.—The petitioner in these writ petitions was an employee of the respondent no. 1 Central Bank of India against whom a disciplinary proceeding was initiated resulting in his dismissal from service.

Since both the writ petitions and the application, being CAN 564 of 2006 arise out of the various show cause notices issued by the disciplinary authority to the petitioner at different stages of the same disciplinary proceeding and the final order of the disciplinary authority dismissing the petitioner from service, the same are disposed of by this common judgment.

The facts relevant for the decision of the writ petitions are that on March 8, 2004 the petitioner was suspended from his service, on the ground that it had come to the notice of the respondent bank that while working at Posta Bazar Branch, the petitioner had manipulated the General Ledger by showing Rs. 14 lakh less and he deliberately altered the page totals of MMDC Balance Book, one lakh each in 14 pages to arrive at the desired figure in the General Ledger, without passing any corresponding voucher. It was further alleged that transfer of Rs. 14 lakh from MMDC account to HSS account, another transfer of Rs. 1.00 lakh from RDS account to HSS account in General Ledger was done by the petitioner to suppress the difference of Ledger balance excess in HSS ledgers. After the preliminary enquiry and not being satisfied with the explanation of the petitioner, the respondent bank initiated a disciplinary proceeding against the petitioner.

On January 04, 2005 the enquiry officer issued a charge sheet against the petitioner. In the said charge-sheet five charges were framed against the petitioner. The first charge was that while working at Posta Bazar Branch, the petitioner had introduced one Kusum Singh to open her home savings account, bearing Account No. 11126 with the respondent bank; on August 04, 1999 a cash deposit of Rs. 1lakh was reflected in the said account and on September 24, 1999 the said Kusum Singh had withdrawn the said amount of Rs. 1 lakh from her said account, but from the cash book, summary book and cash receipt register it was evident that on August 04, 1999 Kusum Singh had not deposited any money in her said account and it was the petitioner who had made a fake credit entry of Rs. 1 lakh in the said account. It was further alleged that on November 04, 2003 the said Kusum Singh closed her said account, it was the petitioner who had written the application for closing the said account and he mentioned that the remaining cheque leaves of the cheque book of Kusum Singh had been destroyed by water, whereas the same were subsequently recovered from the Posta Bazar Branch. The second charge against the petitioner was that without any corresponding entry in the cash receipt register and the cash book, on June 12, 2001 there was a fake credit entry of cash deposit of Rs. 50,000/- in the ledger account of the said account of the said Kusum Singh, it was the petitioner who had written and posted the voucher for fake deposit of Rs. 50,000/- and thereafter the said Kusum Singh had withdrawn the entire sum of Rs. 50,000/- from his said account by cheques and withdrawal slips. The third charge against the petitioner was that on July 17, 1997 he had created a fake entry in the ledger of the said bank account of the said Kusum Singh for Rs. 15,000/- to derive pecuniary benefit. The fourth charge was that on September 23, 1997 the petitioner introduced another person, namely, Swami Nath Singh for opening another Home Saving Account and without any cash deposit voucher of Rs. 50,000/-, the petitioner caused fake a cash deposit entry of Rs. 50,000/- in the ledger of the said account of the said Swami Nath Singh to derive pecuniary benefit and also destroyed the ledger pages of the account of Swami Nath Singh from September 23, 1997 to January 10, 2002 to hide his mischief. It was further alleged by the bank that by making the aforesaid fake credit entries in different home savings account, the petitioner withdrew the amount on different dates. It was the fifth charge that in order to divert the attention of the bank''s management in respect of his aforesaid mischief, the petitioner reduced MMDC balances by Rs. 1 lakh in 14 pages of MMDC Balance Book and the G.L. Balance was reduced to the extent of the said amount. In the charge-sheet, it was mentioned that all the five charges framed against the petitioner were prejudicial to the interest of bank and constituted "Gross Misconduct" as defined under para 5(J) of the Memorandum of Settlement of Disciplinary Action Procedure dated April 10, 2002, (hereinafter called as "the Disciplinary Action procedure, dated April 10, 2002) attracting punishment under para 6(a) thereof.

Thereafter, the enquiry officer conducted the enquiry proceeding, which was attended by the petitioner and the representative of the bank and they adduced both oral and documentary evidence. After considering the evidence on record , the enquiry officer filed his enquiry report before the disciplinary authority. In his report, the enquiry officer submitted his finding that the first, third and fourth charge framed have been proved conclusively, but with regard to the second charge against the petitioner, he held that the same has been proved partially to the extent that the petitioner had made a fake entry of Rs. 50,000/- in S.B. Account No. 11126 and the money was later withdrawn draining bank''s resources fraudulently. He further held that even the fifth charge framed against the petitioner was also proved partially to the extent that he altered the balance on the pages of MMDC Balance Book. After considering the evidence already on record and the report of the enquiry officer, the disciplinary authority agreed with the finding of the enquiry officer with regard to the first, third, fourth and fifth charge framed against the petitioner. The disciplinary authority, however, did not agree with the finding of the enquiry officer that the second charge framed against the petitioner was proved partially. By a communication dated September 14, 2005 the disciplinary authority forwarded a copy of the enquiry report of the enquiry officer to the petitioner and informed the petitioner that he concured with finding of the enquiry officer in respect of the first, third, fourth and fifth charges, but he disagreed with finding of the enquiry officer in respect of the second charge. By the said communication, the disciplinary authority also informed the petitioner of the reasons for which he was of the view that the second charge framed against the petitioner was proved conclusively and not partially, as found by the enquiry officer. The disciplinary authority also gave an opportunity to the petitioner to file his representation or submission in respect of the findings of the enquiry officer. On October 20, 2005 the petitioner submitted his written representation before the disciplinary authority with regard to report of the enquiry officer and the reasons set out by the disciplinary authority to disagree with the finding of the enquiry officer that with regard to the second charge. Thereafter, on November 11, 2005 the petitioner filed the first writ petition, being W.P. No. 20846(W) of 2005 praying for, setting aside of the enquiry report and the notice dated September 14, 2005 issued by the disciplinary authority. He, however, did not obtain any interim order in the said writ petition and the disciplinary authority proceeded with the disciplinary proceeding. After considering the material evidence adduced on behalf of the bank and the petitioner, respectively before the enquiry officer, the enquiry report of the enquiry officer and the representation dated October 20, 2005 filed by the petitioner, the disciplinary authority disagreed with the finding of the enquiry officer that the second charge was proved partially, held that all the first, second, third and fourth charge framed against the petitioner were fully proved and that the fifth charge was proved partially. Thus, the disciplinary authority proposed to impose a consolidated punishment of "Dismissed Without Notice" on the petitioner as per clause 6(a) of the said Disciplinary Action Procedure dated April 10, 2002. By the said notice dated December 09, 2005 the disciplinary authority fixed a hearing on December 09, 2005 and granted an opportunity of hearing to the petitioner to show cause as to why the said proposed punishment should not be imposed upon him. In the said order it was made clear that if the petitioner does not attend the said hearing fixed on December 19, 2005, it shall be presumed that he has nothing to say regarding the proposed punishment and the disciplinary authority shall proceed accordingly. On December 16, 2005, the petitioner filed the second writ petition, being W.P. No. 24219(W) of 2005 challenging the said notice dated December 09, 2005. Even in the second writ petition, the petitioner was unsuccessful to obtain any interim order, nor did he attend the personal hearing fixed by the disciplinary authority on December 19, 2005. In these circumstances, the disciplinary authority concluded the disciplinary proceeding by imposing the consolidated punishment on the petitioner of "Dismissed Without Notice" as per clause 6(a) of the said Disciplinary Action Procedure dated April 10, 2002. By a communication dated January 16, 2006, the Chief Manager of the respondent bank forwarded a copy of the said final order dated January 02, 2006 passed by the disciplinary authority to the petitioner. With the passing of the final decision dated January 02, 2006 by the disciplinary authority, both the writ petitions filed by the petitioner became infructuous. The petitioner, however, did not file a fresh writ petition to challenge the said final order of his dismissal of service passed by the disciplinary authority. On January 02, 2006 he filed an application, being CAN 564 of 2006 in the second writ petition, praying for an interim order of stay of further operation of the said order dated January 02, 2006 passed by the disciplinary authority. The petitioner could not obtain any interim order in the said application.

The only ground urged by Mr. A.K. Bhattacharya, learned advocate appearing for the petitioner was that in view of the clause 8.2 of the Central Bank of India Disciplinary Action Procedure, since the disciplinary authority disagreed with the finding of the enquiry officer that the second charge framed against the petitioner was partially proved, the disciplinary authority ought to have remitted the entire enquiry proceeding back to the enquiry officer for a fresh enquiry report. According to him, in the present case inasmuch as the disciplinary authority disagreed with the finding of the enquiry officer that the second charge framed against the petitioner was proved partially, in violation of paragraph 8.2 of the said Central Bank of India Disciplinary Action Procedure, the final order dated January 02, 2006 Passed by the disciplinary authority is liable to be set aside by this Court. In support of such contention, Mr. Bhattacharya relied on an unreported decision dated February 16, 2000 passed by the Division Bench of this Court in A.P.O. No. 648 of 1998, A.P.O. 649 of 1998, G.A. 3909 of 1998, W.P. No. 293 of 1993 (Central Bank of India v. Vikram Singh Baxla). In the said case the Division Bench of this Court set aside the decision of the disciplinary authority to dismiss one of the employees of the Central Bank of India, on the ground that the disciplinary authority violated the provisions contained in paragraphs 8.2 and 8.8 of the said Disciplinary Action Procedure of the Central Bank of India. Mr. Bhattacharya also relied on the decision of the Supreme Court in the case of Yoginath D. Bagde v. State of Maharashtra and Anr. reported in AIR 1999 SC 3734.

However, Mr. Biswambher Jha, learned advocate appearing for the respondent bank strongly urged for dismissal of the writ petition. According to him, in the present case both the enquiry officer and the disciplinary authority complied with the principle of natural justice at all stages of the disciplinary proceeding and the petitioner was never deprived of his right of hearing. Mr. Jha submitted that in the instant case, the writ petitioner participated in the enquiry proceeding, a copy of the enquiry report together with the proposed finding of the disciplinary authority to accept the finding of the enquiry officer with regard to the first, third, fourth and fifth charges framed against the petitioner, together with the reasons for his proposed finding that even the second charge framed against him was conclusively proved, were all communicated to the petitioner and he was given an opportunity to file his representation before the disciplinary authority and on October 20, 2005 the petitioner, filed reply/representation to the disciplinary authority. He further pointed out that it was only after considering the written representation submitted by the petitioner with regard to the finding of the enquiry officer and the grounds on which the disciplinary authority opined to disagree with the enquiry officer''s finding on the second charge together with the enquiry report and all evidence on record, the disciplinary authority agreed with the finding of the enquiry officer with regard to that the first, third, fourth and fifth charge framed against the petitioner and disagreed with the finding of the enquiry officer with regard to second charge and held the said charge has been proved conclusively. Mr. Jha further contended that even before imposition of the punishment of dismissal of service, the disciplinary authority not only informed the petitioner of the proposed punishment and also granted him a further opportunity to show cause as to why the said proposed punishment should not be imposed upon him, but the petitioner chose not to attend the hearing fixed by the disciplinary authority on December 9, 2005. He further contended that as per paragraph 8.2(b) of the Disciplinary Action Procedure Central Bank of India relied upon by the petitioner, where the disciplinary authority disagrees with any finding of the enquiry officer, it may record its reasons for disagreement and come to its own findings of such charge, if the evidence on record is sufficient for the purpose. Based on Para 8.2(b) of the said Disciplinary Action Procedure of Central Bank of India placed by the petitioner, Mr. Jha next contended that in the present case when all the evidence adduced by the respective parties considered by the enquiry officer in his report, were there before the disciplinary authority, it committed no error of law to come to a finding that the second charge against the petitioner was conclusively proved. Thus, according to him, the contention raised on behalf of the petitioner that in the present case the disciplinary authority committed an error in not remitting back the case to the enquiry officer for fresh enquiry report is devoid of any merit. Relying on the decision of the Supreme Court in the case of Bank of India and Anr. v. Degala Suryanarayana reported in AIR 1999 SC 2407, Mr. Jha next submitted that in the present case it is evident that the disciplinary authority came to a finding with regard to the five charges framed against the petitioner after appreciating the evidence adduced by the petitioner and the bank, respectively before the enquiry officer, he considered the finding and the reasons recorded by the enquiry officer, gave reasons for his own finding on each charge framed against the petitioner and by no means the findings of the disciplinary authority cannot be held to be perverse and, therefore, the petitioner cannot invite this Court, in exercise of writ jurisdiction to interfere such finding of the disciplinary authority. According to him, it is well settled principle of law that the nature of punishment to be imposed in a disciplinary proceeding on a delinquent is within the jurisdiction of the disciplinary authority and in the present case when all the first four charges framed against the petitioner constituting gross misconduct as defined under Para 5(J) of the said Disciplinary Action Procedure, 2002 attracting punishment under Para-6(a) thereof have been proved, the petitioner cannot invite this Court to set aside the punishment imposed by the disciplinary authority against him. In support of such contention, Mr. Jha relied on the decision of the Supreme Court in the case of State of U.P. v. Nand Kishore Shukla reported in AIR 1996 SC 1561. Mr. Jha sought to distinguish the unreported decision of the Division Bench judgment of this Court in the case of Central Bank of India v. Vikram Baxla (supra) on the ground that from the said judgment it does not appear that when the disciplinary authority disagreed with the finding recorded by the enquiry officer, it had the relevant evidence before it to come to a fresh finding and in the said case the Court found that the disciplinary authority had also violated paragraph 8.8 of the Disciplinary Action Procedure relied upon by the petitioner by not issuing any show cause notice to the charged employee disclosing its findings on the charges framed against him and calling for an explanation as to why the proposed punishment should not be imposed upon him.

I have considered the materials on record of the case, as also the submissions made by the learned counsel appearing for the respective parties. It is to be noted that in the present case the charges has been framed against the petitioner and the disciplinary proceeding has been conducted under the provisions of the said Disciplinary Action Procedure, 2002 dated April 10, 2002 and the provisions of paragraphs 8.2 and 8.8 of the Disciplinary Action Procedure of the Central Bank of India relied upon by the petitioner do not find place in the said Disciplinary Action Procedure dated April 10, 2002. However, since the only ground of challenge of the petitioner against the decision of the disciplinary authority dated January 02, 2006 is based on paragraphs 8.2 and 8.8 of the Disciplinary Action Procedure of Central Bank of India, as quoted in the said unreported Division Bench decision dated February 16, 2000 in the case of Central Bank of India v. Vikram Singh Baxla (supra), the same are extracted herein below:

"8.2 Where the Disciplinary Authority disagrees with the findings of the enquiry officer, it may-

(a) For reasons to be recorded by it in writing, remit the case to the enquiry officer for fresh or further enquiry and report and the enquiry officer shall thereupon proceed to hold further enquiry. (Draft-''D'')

(b) Record its reason for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

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8.8 Having decided on the punishment the disciplinary authority should issue a show cause memo (Draft-''F'') to the employee giving in brief his findings and as to why the punishment proposed should not be imposed say within a period of 15 days. A date for personal hearing may also be given. If the employee avails of the opportunity given to him for personal hearing and makes his submission, the disciplinary authority may keep the same in view while inflicting the punishment. If he does not come for the personal hearing the disciplinary authority will issue an order imposing the punishment (Draft-''G'') and convey it to the employee under advice to the administrative authority. He shall also forward a report of the case to the Zonal Office. Central Office in the prescribed form (Draft-''H'')."

From a reading of above paragraph 8.2 of the Disciplinary Action Procedure of Central Bank of India relied by the petitioner, it is clear beyond any doubt that where the disciplinary authority disagrees with the findings of the enquiry officer it may record its reasons for such disagreement and also record its own findings on such charge, if the evidence on record is sufficient for the purpose. Therefore, in the case in hand when the disciplinary authority, while disagreeing with the finding of the enquiry officer as regards the second charge framed against the petitioner had with him, not only the enquiry report of the enquiry officer but also all evidence adduced by the parties, there was no necessity for the disciplinary authority to remit the matter to the enquiry officer for fresh or further enquiry. Further, in its communication dated September 14, 2005 the disciplinary authority not only informed the petitioner of all the grounds on which he sought to differ with the findings of the enquiry officer with regard to the second charge framed against him and it also granted an opportunity to the petitioner to file his representation against the findings of the enquiry officer and his finding with regard to the said second charge. On October 20, 2005 the petitioner also filed his representation with regard to the findings of the enquiry officer in respect of all the charges framed against him as also the grounds on which the disciplinary authority sought to differ with enquiry officer''s finding on the second charge and the same were duly considered by the disciplinary authority before proposing to impose a consolidated punishment of "dismissed without notice" on the petitioner. By a further notice dated December 9, 2015, the disciplinary authority informed the detailed reasons for his findings in respect of each of the five charges framed against the petitioner and granted a further hearing to the petitioner to show cause as to why the said proposed punishment shall not be imposed upon him. The petitioner, however, did not attend the said hearing fixed by the disciplinary authority on December 19, 2005 and on January 2, 2006 the disciplinary authority imposed the consolidated punishment of "dismissed without notice" on the petitioner as per clause 6(a) of the said Disciplinary Action Procedure dated April 10, 2002. For all these reasons, I find that even if it is accepted that paragraphs 8(a), 8(b) and 8.8 of the said Disciplinary Action Procedure of Central Bank of India are applicable in the present case, the disciplinary authority has complied with its obligations under the said provisions and by no means it can be contended that the disciplinary authority ever violated the principle of natural justice. Therefore, I find no merit in the contention raised on behalf of the petitioner that the while disagreeing with the finding of the enquiry officer with regard to the second charge framed against the petitioner, the disciplinary authority had any reason to remit the entire case back to the enquiry officer or that it committed any error of law to come to a finding that the second charge framed against the petitioner was conclusively proved. So far as the unreported decision of the Division Bench of this Court dated February 16, 2000 in the case of Central Bank of India v. Vikram Singh Baxla (supra), in the said case the Division Bench found that the disciplinary authority had inflicted punishment of dismissal on the writ petitioner in utter violation of paragraphs 8.2 and 8.8 of the said Disciplinary Action Procedure of the Central Bank of India and as such, upheld the decision of the learned Single Judge allowing the writ petition of the petitioner setting aside his order of dismissal. From the said judgment it is not clear if in the said case if the disciplinary authority had before itself all the sufficient evidence to record its findings on a charge, different from the finding of the enquiry officer. Further, before reversing the finding of the enquiry officer with regard to the second charge and accepting his finding with regard to the other charges by the said communication dated September 14, 2005 the disciplinary authority forwarded a copy of the report of the Enquiry Officer to the petitioner informed him of the reasons on the basis of which it wants to disagree with the finding of the enquiry officer and also granted the petitioner to file his representation/submission. After considering the report of the enquiry officer and the basis on which the disciplinary authority wanted to differ with the finding of the enquiry officer, on October 20, 2005 the petitioner filed his aforementioned written submission/representation which was also considered by the disciplinary authority. Thus, as rightly pointed out by Mr. Jha, the decision of the Division Bench of this Court in the said unreported decision dated February 16, 2000 in the case of Central Bank of India v. Vikram Singh Baxla (supra) has no manner of application in the present case.

I have considered the Disciplinary Action Procedure dated April 10, 2002 as was produced by the learned counsel representing the petitioner, but I did not find any provision therein which are pari materia with the provision or paragraphs 8.2 and 8.8 of the Disciplinary Action Procedure of Central Bank of India relating to the employees of the respondent bank. However, even it is held that the provisions contained in the said aforementioned paragraphs 8.2 and 8.8 do not expressly apply to the present case of the writ petitioner, the disciplinary authority has the inherent power to disagree with the finding of the enquiry officer. However, as held by the Supreme Court in the case of Yoginath Bagde (supra) it is the settled principle of service jurisprudence that the disciplinary authority before disagreeing with any finding of the enquiry officer must give an opportunity of hearing to the charged employee before reversing those findings. In the facts of the instant case, as already discussed above, it is evident that by the communication dated September 14, 2005, the disciplinary authority forwarded a copy of the report of the enquiry officer to the petitioner and also disclosed the grounds of his disagreement with the finding of the enquiry officer with regard to the said second charge. The disciplinary authority also granted an opportunity to the petitioner to file his representation or submission in respect of the findings of the enquiry officer and on October 20, 2005, the petitioner filed his detailed representation and submission in writing before the disciplinary authority with regard to the findings of the enquiry officer in his enquiry report and the grounds disclosed by the disciplinary authority to disagree with finding of the enquiry officer with regard to the said second charge framed against him. After considering the said representation of the petitioner, together with all evidence of the respective parties and the enquiry officer''s report, the disciplinary authority by the said notice dated December 9, 2005 informed the petitioner of his finding with regard to the second charge and the proposed grounds of imposition to impose consolidated punishment "Dismissed Without Notice" as per clause 6(a) of the said Disciplinary Action Procedure dated April 10, 2002 and in order to grant a further opportunity of hearing to the petitioner , he fixed a further hearing on December 19, 2005. The petitioner, however, chose not to file in representation or submission before the disciplinary authority, nor did he attend the said hearing held by the disciplinary authority on December 9, 2005. For all these reasons, there is no scope to hold that either the disciplinary proceeding conducted by the disciplinary authority or its decision dated January 02, 2006 is vitiated by any illegality.

With regard to decision of the Supreme Court in the case of Yoginath D. Bagde (supra) cited on behalf of the writ petitioner, in the said case the enquiry officer in his report held that the charges against the petitioner were not established and recommended reinstatement of the petitioner in his service. The Disciplinary Committee disagreed with the findings of the enquiry officer and held the charges against the petitioner were proved and decided to impose the major penalty of dismissal of the petitioner from service and recommended to the Government of Maharashtra for dismissal of his service. In the said case, although, in his show cause notice issued to the petitioner, the Disciplinary Committee disclosed to the petitioner the reasons on the basis of which they had disagreed with the findings of the Enquiry Committee, but instead of forming a tentative opinion it had come to a final conclusion that the charges against the petitioner were established. In these facts, the Supreme Court held that in the said case inasmuch as the Disciplinary Committee differed with finding of the enquiry officer and came to a final conclusion that the charges against the petitioner were established without granting any opportunity of hearing to the petitioner, the same resulted in violation of principle of natural justice and set aside the decision of the Bombay High Court dismissing the writ petition of the charged employee. Having regard to the circumstances of the instant case as already discussed above, the disciplinary authority had differed with the finding of the enquiry officer with regard to the second charge framed against the petitioner after granting and imposed the punishment on the petitioner, the opportunity of hearing to the petitioner at all relevant stages. In the present case the disciplinary authority has complied with the law laid down by the Supreme Court in the case of Yoginath Bagde (supra) that before differing with the finding of the enquiry officer on any charge framed against the charged employee, the disciplinary authority must give an opportunity of bearing to the charged employee. Thus, I find that the reliance placed on behalf of the petitioner on the said decision in the said case of Yoginath Bagde (supra) is completely misplaced.

In the present case, it was not the grievance of the petitioner that the findings of the disciplinary authority imposing the punishment of dismissal of his service is vitiated by perversity and as held by the Supreme Court in the case of Degala Suryanarayana (supra) and Nand Kishore Shukla (supra) cited on behalf of the respondent bank, there is no scope for this Court, while exercising the power of judicial review under Article 226 of the Constitution of India, to interfere with the finding of the disciplinary authority against the petitioner.

For the foregoing reasons, I find no merit in any of the two writ petitions or in the application, being CAN 564 of 2006. Accordingly, the writ petitions, being W.P. No. 20846(W) of 2005 and W.P. 24219(W) of 2005 as well as the application, being CAN 564 of 2006 stand dismissed.

However, there shall be no order as to costs.

Urgent certified copy of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.