Judgment:
H.N. Sarma, J.
1. Challenging the legality, validity and justifiability of the departmental proceeding initiated against the petitioner by the respondent Bank issuing a charge under Memo dated 1.10.1996, the report of the Enquiry Officer dated 30.12.2007, the order of dismissal from service dated 13.8.2003 and the consequent order of dismissal of the departmental appeal of the petitioner, the present writ petition has been filed.
2. I have heard Mr. B. Chakraborty, learned Counsel for the petitioner and Mr. L. Talukdar, learned Counsel appearing for State Bank of India.
3. The brief facts necessary for the purpose of disposal of this writ petition are inter alia that the petitioner was appointed as Cashier-cum-clerk in the State Bank of India on 8.8.1985 and was posted in its Lakhimpur Branch. On 3.8.1992 a raid was conducted at his residence while he was on leave which was followed by another raid on 8.8.1992 in which certain incriminating documents were recovered from his residence. An FIR was lodged against the petitioner which resulted registration as GR Case No. 88/1992 under Section 468/409/419/420, IPC with the Lakhimpur Police Station. The aforesaid criminal case was ended with acquittal of the petitioner by the learned C.J.M., Lakhimpur vide judgment and order dated 15.3.1997. While the aforesaid criminal case was pending, the petitioner was served with a charge sheet alleging certain misconduct against him. The charges levelled against the petitioners are quoted below:
(i) That one S.B. Pass Book pertaining to S.B. A/c No. 11/1451 of Shri Satish Talukdar of our North Lakhimpur Branch was in your custody which was found our during the search operation conducted by police authority on 18.9.1992 at your residence. This fact is established as per item No. 9 of the seizure list submitted by the police. This particulars SB. A/c was introduced by one Shri A.K. Das, Profession-Service, D.K. Road, North Lakhimpur, mentioning a S.B. Account No. 46/1877. The account is found to be a false Account No. Since there is no such account in ledger No. 46. The Branch Manager's permission was not taken for opening the account. Though the account was opened on 11.2.1991 with Cheque Book facility, the Cheque Book bearing No. A/307 589161 to 589180 was issued on 5.4.1991 without any request letter or otherwise. There is no initial of any clerk or official in the Cheque Book Register. There is no signature of the recipient of the Cheque Book except that the name of Shri Satish Talukdar was written in the space for signature of recipient. It is clear that the aforesaid opinion of the S.B. Account No. 11/1451 i.e., Shri Satish Talukdar is known to you, since the Pass Book etc. was found in your residence. It was confirmed that nobody in the name of Shri Satish Talukdar is residing as per the address furnished in the account opening form.
(ii) On 5.6.1992, a sum of Rs. 98,310/- was credited to the Account No. 11/1451 of Shri Satish Talukdar by encashment of a draft bearing No. 686843, issuing Branch name was mentioned on the said draft as N.S. Road Branch, Calcutta. We have been advised by Draft Reconciliation Department, Central Office, Mumbai, that the said Draft is outstanding for want of contre item. It has been established that the said Draft is a forged one, no such Draft was issued by N.S. Road Branch, Calcutta. The same was credited to the S.B. A/c No. 11/1451 of Shri Satish Talukdar, Pass Book and Cheque Book relating to the above were recovered from your residence on 8.9.1992 by the Police as per seizure list submitted by them. It is also revealed that the cheques from 589160 to 589168 were issued by you to obtain the payments on different dates against the credit of Rs. 98,310/- details as under:
Cheque bearing No. 589163 for Rs. 30,000/-on 5.6.1992
Cheque bearing No. 589164 for Rs. 24,000/ -on 6.6.1992
Cheque bearing No. 589165 forRs. 15,000/ -on 26.6.1992
Cheque bearing No. 589167 for Rs. 20,000/-on 23.7.1992
Cheque bearing No. 589168 for Rs. 9,000/-on 24.7.1992.
(iii) You had kept one Branch Token No. 116 of State Bank of India, North Lakhimpur Branch, one Draft Advice of Draft No. 0/ 686849, one Account Payee Paid Draft bearing No. 748425 dated 6.5.1992 favouring the District Manager, F.C.I. forRs. 12,300/- another paid draft bearing No. 237248 dated 24.4.1992 forRs. 585/-favouring Shri B.K. Rajbangshi, issuing Branch R.K Puram (New Delhi) paying Branch North Lakhimpur, one rubber stamp of N.S. Road (Calcutta) Branch, one specimen signature stamp of V.P. Ojha, one 'name seal' of D. Banerjee bearing signature No. B-400 in your custody at your residence which were seized by the Police on 8.9.1992 as per seizure list submitted by them. It is therefore, clear that you were in possession of the aforesaid draft forms, draft advices, rubber stamps with an intention to commit fraud. All these aforesaid materials were used by you as an aid for committing the aforesaid fraud of Rs. 98,310/- as mentioned in para (ii) above.
(iv) Your above acts tantamount to gross misconduct on your part in terms of paragraph 521(4)(j) of the Sastry Award read with para 18.28 of the Desai Award.
4. After service of the charge, the petitioner preferred not to give reply of the said charge but submitted an application to the Bank to stay the departmental proceeding as the criminal case is going on in the same set of charges. The authority not having been accepted the said plea, the petitioner unsuccessfully approached this Court by filing CR No. 2941/97 and the said writ petition was disposed of on 28.6.2001 observing as follows:
In view of the above, in the facts of the present case, it cannot be said that the acquittal of the petitioner in the criminal proceeding would necessarily operate as an exoneration of the petitioner in the disciplinary proceeding or that in view of the said acquittal of the petitioner, the departmental proceeding has become redundant. Therefore, the contention of the learned Counsel for the petitioner must fail. The writ petition shall stand dismissed but in the peculiar facts and circumstances, there shall be no order as to costs.
5. It is to be noted herein that the aforesaid Civil Rule was filed after acquittal of the petitioner in the Criminal Court by the learned C.J.M. and none of the parties having been challenged the judgment passed in the aforesaid Civil Rule in the appropriate forum, the said judgment has attained its finality.
6. During the course of the proceeding, the management of the Bank examined four witnesses i.e., (i) Sri N.R. Choudhury, PW 1 (ii) Sri Manindra Kaman, (iii) Sri Jogeswar Gogoi, PW 3 and (iv) Sri K.C. Daw, PW 4 in order to prove the charges levelled against the petitioner. Out of the aforesaid four witnesses, PW 2, Sri M. Kaman and PW 4, K.C. Das were examined and remaining witnesses were not examined in the criminal case. The Enquiry Officer having been found on the basis of the materials available on record which were proved which were proved during the departmental proceeding submitted his report dated 30.10.2002 holding that the charge No. 1 was partially proved and the charge Nos. 2 and 3 were proved against the petitioner. The disciplinary authority, considering the entire aspect of the matter including the enquiry report, inflicted penalty of dismissal upon the petitioner in terms of Clause 521(5)(a) of the Sastry Award as retained by Desai Award and Clause 6(a) of Memorandum of Bipartite settlement dated 10.4.2002. It was further held that the petitioner would not be eligible for either encashment of leave or Bank's contribution to Provident Fund and gratuity will be adjusted towards recovery of pecuniary loss caused by you to the Bank. As against the aforesaid order, the petitioner has also preferred an appeal before the appellate authority. However, during the subsistence of the said appeal, the present writ petition has been filed by the petitioner. It is stated that during the pendency of this writ petition, the said appeal has been dismissed.
7. Mr. Chakraborty, learned Counsel appearing for the petitioner has submitted that after acquittal of the petitioner in the criminal case, by a Court of competent jurisdiction, commencement of the departmental proceeding and subsequent order passed, are wholly unjustified and unfair inasmuch as in the criminal case after full scale hearing the order of acquittal was passed. It is further contended that adequate opportunity to defend the case of the petitioner was not provided by the authority. Perversity of the findings arrived at by the enquiry officer has also been taken as one of the grounds to assail the impugned order. It is also contended that the impugned order of dismissal is against the provision of Clause 521(5)(a) of the Sastry Award inasmuch as the petitioner was not provided either three months notice or salary of three months in lieu of three months notice to which he is entitled.
8. Learned counsel has pressed into service the ratio of the decision of the Apex Court rendered in (1993) 3 SCC 679 Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. and : (2006)IIILLJ1075SC (T.M. Tank v . State of Gujarat and Anr). Mr. Talukdar, per contra submits that in the instant case the contention of the departmental proceeding after acquittal of the petitioner in the criminal case cannot be stated to a legal bar for the disciplinary authority to conduct the proceeding. More particularly, in view of the findings of the High Court in Civil Rule No. 2941/97. He further submits that the case against the petitioner has been fully proved by the departmental witnesses in the proceeding and the writ petitioner was provided with all opportunities to defend his case and no complaint to that effect at any point of time was raised by him. After completion of the proceeding the petitioner was found to be guilty of the charges of misconduct levelled against him and the disciplinary authority has rightly in exercise of its power vested upon him by law dismissed the petitioner from service and accordingly in exercise of the power of judicial review, the same cannot be interfered with.
9. I have considered the rival submission made by the parties and also perused the materials available before me and the evidence adduced during the departmental proceedings by the authority. As indicated above, four witnesses were examined by the disciplinary authority to prove the case against the petitioner. Thus PW 1, Sri N.R. Choudhury approved the withdrawal of Rs. 30,000/- and Rs. 24,000/-from the S.B. A/c No. 11/1451 which were taken by the petitioner which supports from Scroll No. Exht P Ex. 24 and proved by the bank. The recovery of the incriminating documents from the petitioner's house was also proved. Regarding opening of the account in the name of Satish Talukdar, Ext P. Ex. 51 was proved and regarding verification of the introducer's signature in the account in the form PW 1 stated that as the petitioner who was a staff of the Branch took keen interest in opening of the account introducing as known to him and signature is genuine and on that ground he did not further verify it.
10. Similarly, PW 2, Manindra Kaman who was the paying cashier of the branch during the relevant time proved Exhts. 26 and 28 regarding the payment of Rs. 20,000/-and Rs. 15,000/-on 23.7.1992 and 26.6.1993. He also stated that these two payments were made to Sri Pranab Thakuria, an employee of the bank. He further proved Exhts. 11 and 12 which were self cheque drawn by Satish Talukdar. He further stated that the amount was paid to Thakuria as he already paid it to the holder of the amount from his account in question. He further proved that he paid an amount of Rs. 20,000/-and Rs. 15,000/- pertaining to the fictitious account of the petitioner on request made by him and this fact has been stated in para 2 of the Exht. 57. He also proved Exht. 30 which is the bank payment register dated 24.7.1992 wherein the name of the petitioner was shown as the person who received the amount. In cross-examination he reiterated that he has written the name of the petitioner in Exht. 56 whom the amount was paid without anybody's instruction.
11. PW 3 Sri Jogeswar Gogoi also proved Pex. 20 and Pex. 21 and the relevant entries contained therein. During the cross-examination, this witness was confirmed. He made certain statements under Section 161 Cr PC before the police in the criminal case to which he replied to be false.
12. PW 4 Sri K.C. Das proved the copy of the draft paid as advised. He also proved Pex. 16.18, 19, 48, 49, 50 and 53 produced by the Manager. He further proved the seized documents vide seizure list as per Pex 54 and Pex. 31 which is the copy of the leaf of cheque book issue register where the relevant entry contains. The handwriting contained there is similar to that of the petitioner which is Pex. 09. He further stated that though the petitioner has not proved his initials in the vouchers or record, it is quite evident that he is directly involved in fraudulently withdrawing of Rs. 98,000/- from the S.B. A/c No. 11/1451.
13. On the basis of the proved documents and statements of the witnesses, the Enquiry Officer regarding the Charge No. 1 found that involvement of the petitioner in opening of the fictitious account in the name of Sri Satish Talukdar could not be conclusively proved but the other part of the allegations of Charge No. 1 was found to be proved by the Enquiry Officer.
14. Regarding Charge No. 2 the En quiry Officer found that vide seizure list Pex. 54 and Pex. 3, it is seen that the pe titioner used some of these articles men tioned therein in conducting fraud in open- ing the account in the name of Satish Talukdar and this finding was arrived at on the basis of Pex. 48, 49 and 50 and payment of Rs. 30,000/-, 24,000/-, 15,000/-, 20,000/ and 9,000/- were made were made to the petitioner which has been confirmed by the PWs 1 and 2. So far the Charge No. 3 is concerned, the Enquiry Officer, on the basis of the proved documents and other materials available on record that the incriminating documents as mentioned in Pex. 54 including Token No. 116 of the State Bank of India and one Draft Advice of Draft No. 0/686849 and one Account Payee Paid Draft bearing No. 748425 dated 6.5.1992 were recovered from the residence of the petitioner and he was found to have used all these materials for withdrawal of the amount of Rs. 98,310/- in the name of Sri Satish Talukdar. It is also found that the Bank Draft found in the custody of the petitioner was used in the fraudulent transaction. On such finding the Enquiry Officer proved the charges as indicted above. Although Mr. Chakraborty tried to persuade me to appreciate the evidence of PWs to the effect that the findings arrived at by the Enquiry Officer was a wrong findings and mis-interpreted what has been stated by the PWs. In my considered opinion, Writ Court is not entitle to re-appreciate and/or re-assess the evidence adduced during the departmental proceedings.
15. In this connection, the decision referred by Mr. Talukdar in Civil Appeal No. 2055/03 (State Bank of India and Ors. v . Ramesh Dinkar Pande) disposed of on 11.8.2006 is not out of relevance. In the said decision, the Apex Court reiterated the power of the Writ Court in interfering with the findings of any departmental proceeding, more particularly, in the matter where the bank employee is involved. In the aforesaid judgment, the Apex Court referring the decision on : (2006)ILLJ1108SC Government of A.P. and Ors. v . Mohd. Nasurullah Khan; : (1972)ILLJ1SC Union of India v . Sardar Bahadur, : (1989)IILLJ57SC Unien of India v . Parma Nanda; : (1998)ILLJ1217SC Union Bank of India v. Vishwa Mohan; : (2003)IILLJ181SC Chairman and Managing Director, United Commercial Bank abd Ors. v. P.C. Kakkar; : (2003)IILLJ267SC Regional Manager, U.P. S.R.T.C, Etawah and Ors. v . Mati Lal and Anr.; : (2005)ILLJ569SC Cholan Roadways Ltd. v . G. Thiragnanasambandam and : (2006)ILLJ826SC T.N.C.S. Corporation Ltd. and Ors. v . K. Meerabai has categorically held that in taking the task of judicial review against an order passed in a departmental proceeding, the Writ Court is not entitled to re-assess and/or re-appreciate the materials on record unless it is shown to be perverse onerThat apart, it is.
16. In the case of Lalit Popli v . Canara Bank reported in (2003) 3 SCC 582, the Apex Court at paragraph 17 held as follows:
While exercising jurisdiction under Article '226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not taking to adjudication of the case on merits as an appellate authority.
17. In the case of R.S. Saini v. State of Punjab and Ors. : (1999)IILLJ1415SC the Apex Court rejecting the contention about the perversity of the findings observed that the conclusion arrived at by the departmental authority on the basis of the materials available on record and after considering the defence put forth by the appellant, conclusions have been drawn in a reasonable manner and objectively. These conclusions cannot be termed as perverse or not based on any material, nor it is a case where there has been any non-application of mind on the part of the inquiring authority and the High Court has got limited scope under Article 226 of the Constitution, to interfere in such matter. Adverting to the contention of Mr. Chakraborty that after acquittal in the criminal case dealing with the departmental proceeding is unfair and unjust for which reference has been made to Capt. M. Paul Anthony (supra). In the said case, the Apex Court at para 34 observed as follows:
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the enquiry officer, a copy which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceeding to stand.
18. Same view was reiterated by the Apex Court in the case of GM. Tank (supra) but in the instant case, the facts of those cases are not similar. In the present case all the witnesses examined in the departmental proceedings were examined in the criminal case. That apart, the aforesaid contention of the petitioner has attained its finality by the decision of this Court i.e. C.R. No. 2941/97 and in the present case whatever evidences were adduced during the criminal trial were sought to be relied on the departmental proceeding but the disciplinary authority independently proved the case in the departmental proceeding. In that view of the matter, the aforesaid decision does not help the petitioner. The contention of Mr. Chakraborty learned Counsel for the petitioner is that the authority in inflicted the penalty upon the petitioner has violated Clause 521 of the Sastri Award by not providing either notice or three months pay in lieu of notice. Clause 521(c) inter alia provides that when an employee is acquitted in a criminal case it would he open for the management to proceed with him under the provisions prescribed in the said clause. However, in the event, the management deciding after the enquiry not to continue him in service, he shall be liable only for termination from service with three months ' pay and allowances in lieu of notice and he shall be deemed to have been in duty during the period of suspension and shall be entitled to full pay and allowances alongwith with substantial allowance for the period of suspension provided that he is acquitted by giving benefit of doubt, he may be paid such pay and allowance as the management may deem fit and proper and the period of his absence shall not be treated as period as on duty unless the management so directs. Clause 321(5) provides that the employees found on gross misconduct may be dismissed with notice. The case of gross misconduct has been dealt under Sub-clause 4 of Clause 321. In the instant case, the charges framed against the petitioner are stated to be gross misconduct and the provision of Clause 321(2)(c) would not be applicable and instead provision of Clause 321(5) would be applicablelrrhe learned Counsel could not point out any infraction of the said clause in the instant case and accordingly, the petitioner having been found guilty of misconduct, was dismissed from service without notice.
20. In view of the aforesaid discussion, I do not find any merit in this writ petition.
21. Accordingly, this writ petition stands dismissed.
22. The parties shall bear their own cost.