WP(C) No of Versus- BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY

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1 THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh) WP(C) No of 2005 Shri Manik Gogoi, S/O Shri Jatiram Gogoi, R/O Eragaon, PO-Nakachari, District-Jorhat, Assam. Petitioner. -Versus- 1. United Bank of India, 2. The Chief Regional Manager, United Bank of India, 3. The Regional Manager, United Bank of India, 4. The Enquiry Officer & the Deputy Regional Manager, United Bank of India, Respondents. Advocate(s) for the Petitioner : Advocate(s) for the Respondents : Mr. D. Choudhury, Mr. T. Ali, Mr. S.N. Krishnatraya, Mr. M. Choudhury. Mr. S. Dutta (Sr. Adv.). BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY Date of Hearing and Judgment : 17 th July, 2015 JUDGMENT AND ORDER (ORAL) Heard Mr. D. Choudhury, the learned counsel appearing for the petitioner. The respondents are represented by Mr. S. Dutta, the learned Sr. counsel. WP(C) 7363/2005 Page 1 of 7

2 2. The petitioner while serving as the Cashier (CCG) in the Nakachari Branch of the United Bank of India was placed under suspension on (Annexure-I) in contemplation of a disciplinary proceeding and subsequently the charge memo dated (Annexure-II) was served upon him with the following allegation: You, as Cashier of Nakachari Branch received cash of Rs.40,000/- on and Rs.13,000/- on from Md. Ratul Borah, SB A/c (No.7504) holder of the Branch, under your signature and Bank s seal. Though cash scrolling system was in fore in the branch but you instead of directing the customer to the concerned official for scrolling of the pay in slip prior to receipt of cash, directly received cash under your signature and Bank s seal on both the aforesaid occasions. Moreover, you did not account for the aforesaid receipt of cash Rs.40,000/- and Rs.13,000/- on both the occasions in the Bank s book of account and fraudulently misappropriated the amount for your personal gain and benefit. Thus, your aforesaid fraudulent acts of misappropriate of cash for your personal gain and benefit exposed the Bank to a financial loss of Rs.53,000/-. Your such fraudulent acts amount to gross misconduct in the meaning of clause 5(j) of the memorandum of settlement dated 10 th April, 2002 which, inter alia, reads as under: Doing the acts prejudicial to the interest of the Bank. 3. The written statement of defence was given by the delinquent on (Annexure-VI) and thereafter a departmental enquiry was constituted where the delinquent participated. After conclusion of the enquiry, the charges were found to have been proved and the disciplinary authority concurred with the finding of the Enquiry Officer. Considering the gravity of the misconduct, the punishment of dismissal was proposed on (Annexure-X) by the Chief Regional Manager of the Bank and since the delinquent failed to give any proper response to the letter dated , the disciplinary authority dismissed the delinquent through the impugned order dated (Annexure-XI) and consequently the said D.P. and the resultant punishment, are under challenge in this proceeding. 4.1 Assailing the legality of the disciplinary proceeding, Mr. D. Choudhury, the learned counsel submits that the delinquent was denied a fair opportunity to defend the charges as he was not provided with the copies of the WP(C) 7363/2005 Page 2 of 7

3 management documents, (listed in the letter dated ) at the stage of furnishing his written statement of defence on The finding of the disciplinary authority is contended to be vitiated on account of non-examination of the complainant Ratul Borah, who was the account holder of the bank whose deposited money was allegedly misappropriated by the delinquent. 4.3 The legality of the punishment is also challenged by the delinquent by contending that the enquiry report whereby the charges were found to have been proved, were not furnished to him and thus he was denied of a fair opportunity to question the proportionality of the penalty of dismissal. 4.4 Mr. D. Choudhury, the learned counsel further submits that when the petitioner was suspended on , an FIR was lodged by the Bank authorities against the delinquent leading to registration of the G.R. Case No.523/2004 under Section 409 IPC and in this case the delinquent was acquitted on by the learned CJM, Jorhat and thus on account of the acquittal in the criminal case, the counsel argues that the disciplinary proceeding and the penalty should be interfered with by the High Court. 5.1 Defending the bonafide of the disciplinary proceeding, Mr. S. Dutta, the learned Sr. counsel on the other hand submits that the delinquent was serving as a Cashier in a nationalized bank and when there is breach of trust by the bank s Cashier, there can be no lesser punishment than the penalty of dismissal. 5.2 The Sr. counsel further submits that the delinquent was afforded inspection of all management documents prior to filing of his WS and at the stage of preliminary enquiry, the copies of the documents were also furnished to him on and accordingly it is argued that the petitioner received all material and opportunity to defend the charges. 5.3 While admitting that the enquiry report was not furnished to the delinquent, the Sr. counsel argues that unless prejudice can be shown by nonreceipt of the enquiry report, the Court should not automatically interfere with the disciplinary proceeding since the Apex Court has held that prejudice must be proved in all such cases by the affected delinquent. WP(C) 7363/2005 Page 3 of 7

4 5.4 On the legal consequences of the acquittal order, the Bank s counsel submits that the charges in the disciplinary proceeding and in the criminal case are distinct and separate and moreover it was not a clear case of acquittal and accordingly it is argued that there can be no impact on the disciplinary proceeding, by the acquittal of the delinquent in the G.R. Case No.523/ Before proceeding any further, it must be noted that the delinquent was serving as a Cashier in the United Bank of India at the relevant time and as a bank employee he is expected to demonstrate higher standard of honesty and integrity, since he deals with the trust of the bank s customers. Moreover, the scope of a disciplinary proceeding and the scope of criminal case are distinct and the standards of proof in the two proceeding are vastly different. This Court must also be conscious of the fact that while exercising jurisdiction under Article 226 of the Constitution, the High Court does not act as an appellate authority and its jurisdiction is circumscribed by limiting itself to correct errors of law or procedural errors, leading to manifest injustice or violation of principles of natural justice. [See: Lalit Popli Vs. Canara Bank & ors. (2003)3 SCC 583] 7. Proceeding on the above premises, let us now examine whether the disciplinary proceeding was vitiated by any procedural irregularity leading to manifest injustice for the delinquent. As earlier noted, the delinquent was given due opportunity to inspect the management documents, prior to filing of his written statement of defence. Moreover the copies of the documents were also supplied to him during the stage of preliminary enquiry. The order sheet of the enquiry proceeding made available by the bank s counsel reflect that the delinquent declined to adduce any evidence or produce any witness, in support of his defence. During the enquiry, the management witness proved the bank s cash receipt ledger, the cash scroll, the cash receipt register and the sub-cash book maintained in the bank, to prove that the amounts received from the complainant Ratul Borah were not entered by the delinquent, in the relevant registers of the bank, whereas credit entry was made in the passbook of the customer. On this basis, the charge of misappropriation of Rs.40,000/- and Rs.13,000/- (total Rs.53,000/-) from the bank, was found to have been established. Thus it can be seen that the conclusion reached by the Enquiry WP(C) 7363/2005 Page 4 of 7

5 Officer was based on relevant records and more importantly the delinquent failed to adduce any evidence to show that a contrary conclusion is possible on the charges. 8. It further appears that the delinquent never questioned the legality of the enquiry proceeding and in fact to a specific query of the Enquiry Officer, the petitioner stated that he has no defence evidence to produce in the proceeding. From this, it is apparent that objection on the legality or fairness of the enquiry proceeding was never raised by the delinquent at the appropriate stage and therefore he cannot now be allowed to question the legality of the process for the first time, before this Court, if we follow the ratio of Ramvir Singh Vs. Union of India & ors. reported in (2009)3 SCC The next question to be answered is whether the non-examination of the account holder Ratul Borah during the enquiry would vitiate the conclusion reached by the Enquiry Officer. As earlier noted, the conclusion was reached on the basis of the omission to reflect the deposits made by the account holder, in the bank s cash receipt ledger, cash scroll, cash receipt register and the sub-cash book whereas a credit entry was made, in the passbook of the customer. Thus the charges were found to be established on the basis of documentary evidence and in such backdrop, the non-examination of the complainant in my view, will not lead to a different conclusion. Moreover if the delinquent had any specific defence, he could have adduced his own evidence to prove his innocence but he failed to do so, although adequate opportunity was afforded to him, during the enquiry proceeding. 10. In so far as the acquittal of the delinquent by the criminal Court, it must be noted that the charges in the disciplinary proceeding and in the criminal proceeding are distinct and different and what is also relevant is that it was not a clear case of acquittal but the accused was given the benefit of doubt in the G.R. Case No.523/2004, by the learned CJM, Jorhat. Therefore, in my considered opinion, the delinquent s acquittal in the criminal case will have no bearing on the disciplinary proceeding and the punishment inflicted upon him. 11. Now it is to be considered as to whether, non-furnishing of the enquiry report will legally vitiate the disciplinary proceeding. On this aspect one WP(C) 7363/2005 Page 5 of 7

6 can usefully refer to the Managing Director, ECIL Vs. B. Karunakar & ors. reported in (1993)4 SCC 727, where the Apex Court has held as follows:- 30 (v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a "unnatural expansion of natural justice" which in itself is antithetical to justice. 12. Because of the above ratio, the Court has now to consider whether any prejudice is caused to the delinquent or whether different consequences will result, if the enquiry report would be furnished to the petitioner. As earlier noted, the charges were proved on the basis of several documentary evidence and the delinquent had the fullest opportunity to prove his innocence but he failed to adduce any defence evidence. Moreover he participated fully in the enquiry proceeding. In such circumstances, I am of the considered opinion that furnishing of the enquiry report to the delinquent cannot result in any different consequence in as much as, the delinquent was afforded all reasonable opportunity to defend the charges and yet he himself refused to adduce any defence evidence. In this context, the petitioner has relied on Safiqul Hoque Vs. State of Assam reported in 2001(3) GLT 146, where this Court concluded that prejudice was caused to the delinquent by not supplying to him the enquiry report. But in that case, the conclusion of the enquiry was in favour of the delinquent which was disagreed by the disciplinary authority. Therefore non- WP(C) 7363/2005 Page 6 of 7

7 furnishing of the enquiry report was concluded to have caused prejudice to the delinquent and on that basis, this Court interfered with the disciplinary proceeding. But in the present case, the charges were found to have been proved by the Enquiry Officer and this was concurred by the disciplinary authority and therefore I hold that the ratio of Safiqul Hoque (supra) will not assist the delinquent, in the present matter. 13. When a disciplinary proceeding is drawn up against an employee, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ Court is not expected to act as an appellate authority to judge the merit of the conclusion reached by the Enquiry Officer. Interference would be justified only when there is procedural error leading to manifest injustice. But in the present case, as earlier noted, the delinquent was afforded a fair opportunity to defend the charges and the conclusion of the Enquiry Officer is based on multiple documentary evidence. Therefore interference with the disciplinary matter will not be justified in this case. 14. Before parting with the records, an observation on the proportionality of the punishment should also be made. The delinquent here was a Cashier in the bank and the proven charge against him is misappropriation of the bank s money, while he was functioning as a trusted employee of the bank. When the petitioner acted for personal gain and misappropriated the bank s money, there can be no sympathetic approach on the quantum of punishment on such delinquent and therefore I hold that the penalty of dismissal was proportionate to the proven charge, against the bank s Cashier. 15. In view of the above discussion, I find no merit in the present case and the same is consequently dismissed. No cost. Roy JUDGE WP(C) 7363/2005 Page 7 of 7