Full Judgment
1 ORDER
SHEET GA No.2198 of 2014 APOT No.351 of 2014 WP No.1854 of 2004 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE SUNITI KUMAR BISWAS Versus STATE BANK OF INDIA & ORS.BEFORE: The Hon'ble JUSTICE BANERJEE The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY Date : 11th November, 2014.
Appearance: Mr.Ranajit Chatterjee, ld.
Advocate For the Claimant.
Mr.S.Pal Chowdhury, ld.
Advocate For the Respondent.
The Court :- The appellant was an employee of the Bank.
He was a clerical staff.
He obtained overdraft facility from its employer Bank.
The Bank would contend, the overdraft facility was extended in exchange of a security that the appellant, by utilizing his position, got hold of and encahsed causing loss to the bank.
However, the appellant subsequently paid off the overdraft amount.
According to the appellant, the bank overcharged interest.
The appellant was proceeded with departmentally on the charge of misappropriation, breach of trust and other related charges.
The Enquiry Officer held in favour of the petitioner to the extent of possession of security.
The Enquiry Officer held, it was handed over to him by the Bank.
The disciplinary authority, however, proceeded to punish him with the penalty of premature superannuation.
Initially, he filed writ petition.
This Court set aside the order of discharge and directed proceeding to be conducted denovo.
Subsequently, fresh punishment of discharge of service with superannuation “based on pension/provident fund/gratuity as would be due otherwise under the prevalent rules/regulation” without disqualification from future employment.
Being aggrieved, the appellant filed the writ petition.
The writ petition was dismissed.
Hence, this appeal.
We have heard the parties at length.
Mr.Ranojit Chatterjee, learned Counsel appearing for the appellant would contend, so called security, the bank talked about, was not in relation to the overdraft facility.
Mr.Chatterjee has, however, not been able to give any plausible explanation as to how the bank got hold of the security as he never challenged the finding of the enquiry officer to the extent as referred to above.
Mr.Chatterjee would strongly rely upon a Division Bench decision in the case of Syndicate Bank v.
Venkatarama Murlidhar Shenoy reported in 2004-III-LLJ-73 in which one of us was a party.
He would rely upon paragraph 19 which is quoted below: “19.We are only to see whether the disciplinary proceeding was properly conducted following the principles of natural justice or not.
Composite charge of issuance of delivery orders and admitting the same before the superior officers and pleading mercy therefor was levelled against the respondent.
The respondent in his defence pleaded that he acted on the basis of oral instructions of his superior.
The bank considering the reply disclosed the list of witnesses as well as those two letters of confessions.
After disclosing those, the bank chose not to produce those witnesses as also those documents and thereby denying the respondent opportunity of proving his case through those witnesses and letters of confession.
Had it been a civil case things would have different but in a disciplinary proceeding if a person is being deprived of his livelihood he should be afforded with all opportunity to absolve himself from the charges brought against him.
We are of the view that having not produced those witnesses.
The bank withheld the best evidence and the Enquiry Officer erred in holding that the charge was proved.
We reiterate that the factum of issuance of delivery orders was never in dispute and there was no occasion for the same to be inquired into.
The other limb of the charge that the delinquent admitted the said charge and pleaded mercy by way of written confession were not at all attempted to be proved.
Had that attempt been made by the bank, the respondent could have got an opportunity to absolve himself from the charges by placing his case before those witnesses.
If this is not violation of principles of natural justice, we are not aware what more it could be.” Citing the aforesaid decision, Mr.Chatterjee would contend, once the charge that the delinquent obtained the security from the custody of the bank was held to be not proved, the charge of breach of trust would automatically fall.
He, however, admits, the delinquent obtained credit facility that was duly paid and cleared off in due course.
The question of suffering any loss by the bank would thus not arise at all.
Hence, there could be no punishment, in the alternative, punishment was disproportionate.
He would lastly submit, the authority imposed a punishment of premature superannuation with all benefits that a person on superannuation would get including pension that is now denied to the appellant.
Mr.Chatterjee would contend, he had a long tenure of service that would expire in 2020.
Had he been allowed to serve the Bank till that date, he would be entitled to pension.
The authority, keeping in mind his service tenure, allowed the pensionary benefit that is now denied by taking the plea of the Pension Rules.
He would also submit, provident fund and gratuity were not properly paid for which he would reserve his liberty to move appropriate forum.
He would also submit, subsistence has also not been paid.
We have considered the rival contentions.
We are unable to appreciate as to how the learned Judge could be said to have committed error in not interfering with the order of punishment.
The decision cited at the bar would relate to a dismissed employee where the Court would be more cautious to examine as to whether there was any failure of principles of natural justice.
In the instant case, the authority gave adequate opportunity to the delinquent at every stage to defend him in the proceeding.
Even the Enquiry Officer found in favour of the delinquent as referred to above, we, however, cannot overlook his own explanation offered to the bank on October 15, 1994 appearing at page 38 of the application which is as follows: “(iv) In conclusion, I may state that I never intercepted any instrument; on the contrary in the interest of expeditious collection I collected the proceeds by hand to minimise interest “with the verbal permission of the then P.
Dv.
Manager.
However, I regret that I neglected to detect that my OD A/c had not been liquidated before withdrawing the funds subsequently from my said SBA/c for the reasons stated above **** loss on my OD A/c.” From the paragraph quoted supra, it would appear, he would admit, he collected the proceeds of the security.
From the statement of account it appeaRs.he did not deposit the entire maturity value upon encashement thereof.
It is true, he ultimately squared up the dues of the loan account but it took substantial time.
The fact would depict, he encahsed the UTI maturity cheque for Rs.36,383.87 on August 26, 1993 and squared off the overdraft account from time to time.
There was substantial payment subsequent to encashment and ultimately, amount was cleared up in September, 1994 as claimed by him.
We have considered the facts and circumstances of the case.
The authority imposed lesser penalty.
Being a banker, he could have earned respect and trust that the delinquent failed to achieve.
It is true, bank did not suffer any loss.
It is also true, substantial payments were made subsequently.
Taking into account the aforesaid fact, the punishment so imposed would be lesser and we do not find it disproportionate.
On that score we do not find any scope of disagreement with the learned Single Judge.
However, we cannot be a mere onlooker when we notice a peculiar stand taken by the bank denying him pensionary benefit on the plea of Pension Rules.
The delinquent was otherwise entitled to pension had he served the bank till the natural date of superannuation.
The authority knew it.
Yet, the authority made it clear, he would be entitled to pension as would be due as per rules and regulations.
Hence the delinquent would be entitled to the said benefit, if necessary, by relaxing the Pension Rules.
We are told, subsistence allowance has not been paid.
We once again direct the bank to pay off the subsistence allowance without any delay.
All arrears of pension must be calculated in terms of the foregoing order and the arrears of pension must be disbursed within a period of 2 months from date.
The appeal is disposed of accordingly without any order as to costs.
(BANERJEE, J.) (ASHIS KUMAR CHAKRABORTY, J.) dg/