Bhaskar Adhikari vs Bank Of India & Others on 10 March, 2026

    0
    53
    ADVERTISEMENT

    Calcutta High Court (Appellete Side)

    Bhaskar Adhikari vs Bank Of India & Others on 10 March, 2026

                                                1
    
    
    
                          IN THE HIGH COURT AT CALCUTTA
                      (CONSTITUTIONAL WRIT JURISDICTION)
                                      APPELLATE SIDE
    Present :
    The Hon'ble Justice Partha Sarathi Chatterjee
                                     WPA 10517 of 2019
                                      Bhaskar Adhikari
                                               Vs.
                                   Bank of India & Others
    For the petitioner                  : Mr. Ritzu Ghosal,
                                         Mr. Pourush Bandopadhyay,
                                         Mr. Anirban Ghosh.
    
    
    For the Respondents/Bank            : Mr. R. N. Majumder,

    Mr. S. M. Obaidullah.

    Heard on                            : 11.02.2026
    
    Judgment on                         : 10.03.2026
    
    Partha Sarathi Chatterjee, J.:-
    
    Preface:
    
    

    1. By filing the present writ petition, the petitioner calls in question the

    SPONSORED

    legality, validity and propriety of the order of punishment dated 15th October,

    2018 as well as the order passed by the Appellate Authority dated 21st

    January, 2019, and prays for issuance of a writ of certiorari for quashing and

    setting aside the said orders. The petitioner further prays for issuance of a writ

    of mandamus commanding the respondent authorities to reinstate the

    petitioner in the service of the Bank of India to the post which he held
    2

    immediately prior to his “Dismissal Without Notice”, together with all

    consequential service benefits including full back wages.

    Petitioner’s case:

    2. Before embarking upon an examination of the issues raised in the present

    writ petition, it would be apposite to advert to the essential facts, as projected

    in writ petition and the documents appended thereto, which are as delineated

    hereunder:

    i) The petitioner was appointed in the service of the Bank of India on

    11th March, 1998 in the clerical cadre as a Cash-cum-Account Clerk on

    compassionate grounds, initially on probation for a period of six

    months, and joined the Bank on 16th March, 1998 at its Kharagpur

    Branch. Upon successful completion of the probationary period, the

    petitioner was confirmed as a permanent employee with effect from

    16th September, 1998. From 1998 till April, 2017, the petitioner

    continuously served at the said Kharagpur Branch, rendering about

    nineteen years of uninterrupted and unblemished service.

    ii) Although the petitioner’s designation was cash-cum-accounts clerk,

    his duties were not confined to the cash department and routine

    counter operations. In July 2005, in recognition of satisfactory

    performance and diligence, the petitioner was selected for the post of

    Marketing Assistant, which entailed assignments outside the branch

    premises in addition to regular duties.

    iii) On 25 April 2017, the petitioner was served with a suspension order

    issued by the Zonal Manager & Controlling Authority, Bardhaman

    Zone, pending initiation of disciplinary proceedings.
    3

    iv) In the order of suspension, it was indicated that, upon preliminary

    investigation, serious irregularities were detected in the pensioners’

    accounts of the Kharagpur Branch. It was further revealed that

    voluminous transactions involving a huge number of pension accounts,

    mostly belonging to illiterate pensioners affixing thumb impressions,

    were highly suspicious, indicating the involvement of a third party

    outside the bank.

    v) It was mentioned in the said order that the Financial Transaction

    Inquiry Reports, generated for the period from July 2016 to April 2017,

    revealed a series of similar high-value transactions in various

    pensioners’ accounts (mostly dormant), aggregating approximately Rs.

    84 lakhs. It was alleged that such transactions were entered using the

    User IDs of Saktipada Das and the petitioner, and were posted/verified

    by Kamal Bhattacharya and Sudip Das. In particular, the entries were

    made either by Saktipada Das, Head Cashier, or by the petitioner, and

    were verified either by Kamal Bhattacharya or Sudip Das. On the basis

    of such allegations, the petitioner was placed under suspension.

    vi) Subsequently, by another letter dated 10.07.2017, the petitioner was

    asked to submit his written version within seven days from the date of

    receipt thereof. The petitioner submitted such written version.

    However, subsequently, a charge sheet dated 25.10.2017, followed by a

    corrigendum dated 01.12.2017 containing three articles of charge, was

    served upon the petitioner.

    ix) The sum and substance of the charge was that the petitioner, acting

    with dishonest intent, activated 19 dormant pension accounts by
    4

    making entries in the Finacle system of the bank without obtaining the

    requisite KYC documents or any request from the concerned account

    holders. After such activation, he allegedly effected cash payments from

    those accounts on the basis of withdrawal slips, despite there being no

    valid mandate and without proper authentication or cancellation of the

    signatures or Left Thumb Impressions of the account holders by the

    branch officials. Save and except four instances, the denominations of

    the currency notes were also not recorded on the reverse of the

    withdrawal slips. By such acts, in alleged connivance with two other

    staff officers of the bank, the petitioner is stated to have

    misappropriated a sum of Rs. 38.67 lakhs from the said dormant

    accounts, in gross violation of the bank’s operational norms, systems

    and procedures.

    x) Subsequently, a domestic enquiry was conducted between

    15.12.2017 and 17.03.2018. During the enquiry, the management

    examined five (5) witnesses and relied upon documentary evidence

    marked as ME-1, ME-2 series, ME-3 series, ME-4 to ME-8, ME-9

    series, ME-10 series, ME-11 series, and ME-13 to ME-15, ME-16 series,

    and ME-17 to ME-19, including system-generated transaction logs,

    withdrawal instruments, internal procedural circulars concerning

    activation of dormant accounts, and the report of the handwriting

    expert.

    xi) After conclusion of the examination of the management witnesses,

    the petitioner submitted his written notes of argument, wherein he

    denied all the allegations and specifically contended that there was no
    5

    direct evidence to establish that he had personally activated the

    accounts or prepared and processed the disputed withdrawal slips. The

    petitioner relied upon the report of a handwriting expert, which,

    according to him, indicated that the signatures appearing on several

    disputed withdrawal slips did not match his admitted handwriting. The

    petitioner further contended that during cross-examination of the

    management witnesses it transpired that the procedure for activation

    of dormant accounts was not clearly brought on record and that no

    witness could conclusively demonstrate that the petitioner had

    exclusive access to the system at the relevant time. The petitioner also

    contended that the investigation failed to identify the person who had

    physically handled the withdrawal instruments.

    xii) However, upon conclusion of the enquiry, the Enquiry Officer

    returned a finding that Charge-I(i) was partially proved, Charge-I(ii)

    was proved, and the charge mentioned under paragraph 4 at page 3

    was not proved.

    xiii) Thereafter, the Disciplinary Authority issued a “disagreement note”

    dated 28.05.2018, expressing disagreement with the findings of the

    Inquiry Officer, and recorded its own finding that all the charges stood

    fully proved against the petitioner. In the said note, the petitioner was

    asked to submit his representation within five days from the date of

    receipt thereof.

    xiv) The record reveals that the petitioner submitted a joint

    representation in respect of the substituted findings recorded by the

    Disciplinary Authority as well as the enquiry report.
    6

    xv) However, by a notice dated 4 September 2018, she was afforded an

    opportunity of personal hearing and was also called upon to submit a

    written statement to show cause as to why the proposed punishment of

    dismissal without notice should not be imposed upon her.

    xvi) The petitioner submitted a representation against the proposed

    disagreement, contending that the Disciplinary Authority had

    overlooked material evidence, particularly the forensic report, and had

    failed to indicate how the cumulative evidence established that the

    charges stood proved against the petitioner and how petitioner had

    misappropriated Rs. 38.67 lakhs in connivance with other officials of

    the bank.

    xvii) However, by order dated 15 October 2018, the Disciplinary Authority

    imposed the penalty of dismissal without notice, which, according to

    the petitioner, was passed with a pre-determined mind, without due

    consideration of her representations, documents and witnesses, and in

    disregard of the principle of preponderance of probability, allegedly

    with the sole objective of making her a scapegoat in order to shield the

    real culprits.

    xviii) The petitioner preferred a statutory appeal against the order of

    punishment on 5 December 2018; however, the same was rejected by

    the Appellate Authority on 21 January 2019 in a mechanical way. A

    further representation dated 11 March 2019 seeking reconsideration

    has remained unattended. Aggrieved by the orders of dismissal and

    rejection of appeal, the petitioner has approached the Hon’ble High

    Court at Calcutta under Article 226 of the Constitution of India.
    7

    Respondents’ case:

    3. The respondents sought to defend the writ petition with following

    contentions:

    i) The petitioner is a “workman” within the meaning of Section 2(s) of

    the Industrial Disputes Act, 1947 and, as such, has an alternative

    statutory forum to ventilate his grievances. Accordingly, the writ

    petition is liable to be dismissed.

    ii) While addressing the merits of the case, it was contended that the

    charge sheet disclosed that the petitioner, with dishonest intent and in

    gross violation of the bank’s operational norms, systems and

    procedures, had activated 19 dormant pension accounts by entering

    relevant data into the system without obtaining the requisite KYC

    documents. It was further alleged that, upon such unauthorized

    activation, the petitioner proceeded to effect cash payments in eleven of

    those dormant accounts by posting relevant entries in the system

    without any authorization from a competent officer, without the

    presence of the account holders or their LTI, and without recording the

    denominations on the reverse of the withdrawal slips, thereby

    misappropriating Rs. 38.67 lakhs. Accordingly, it was asserted that the

    petitioner had acted in a manner prejudicial to the interests of the bank

    within the meaning of paragraph 5(j) of the Bipartite Settlement dated

    10 April 2002.

    iii) The petitioner denied the allegations levelled against him.

    Consequently, a departmental enquiry was initiated, in which he was
    8

    afforded full opportunity to defend himself. Upon conclusion of the

    enquiry, all the charges were found to have been proved, and the

    penalty of “dismissal without notice” was imposed upon him.

    iv) Aggrieved thereby, the petitioner preferred a statutory appeal

    against the order of punishment. The Appellate Authority, upon due

    consideration of the materials on record, dismissed the said appeal.

    The petitioner has sought to raise certain disputed questions of fact

    which cannot be adjudicated in the present writ proceeding.

    Contents of affidavit-in-reply:

    4. In the affidavit-in-reply, it was specifically denied that the writ petition is

    liable to be dismissed on the ground of non-exhaustion of an alternative

    remedy. It was asserted that the provisions of the Banking Regulation Act,

    1949 override those of the Industrial Disputes Act, 1947, particularly Section

    10 thereof, and that this Court has the jurisdiction to entertain, try, and

    determine the issues raised in the present writ petition.

    5. While denying the charges in their entirety, it was further contended that

    there is no direct evidence on record to establish that the allegations levelled

    against the petitioner have been duly proved.

    Arguments:

    6. Mr. Ghoshal, learned advocate appearing for the petitioner, advanced

    arguments on her behalf. The submissions advanced by Mr. Ghoshal may be

    crystallised as follows:

    9

    i) The petitioner was initially appointed as a Cash-cum-

    Accounts Clerk and, upon being found satisfactory in his overall

    performance, was subsequently selected as a Marketing

    Assistant of the bank. He was occasionally entrusted with

    additional duties in the cash section. However, on 25 April 2017,

    an order of suspension was served upon him alleging that he had

    activated dormant pension accounts, effected cash payments in

    gross violation of the bank’s norms, and thereby

    misappropriated Rs. 38.67 lakhs.

    ii) He submits that, thereafter, a charge sheet containing three

    charges was served upon the petitioner. The petitioner

    submitted his representation in response thereto, and a

    departmental enquiry was conducted. The Enquiry Officer, in his

    report, concluded that Charge No. 1 was partially proved and

    charge no.2 was proved but the remaining charge was not

    proved. However, the Disciplinary Authority disagreed with the

    findings of the Enquiry Officer, held that all the charges stood

    proved, and ultimately imposed the penalty of dismissal without

    notice.

    iii) He contended that the decision of the Disciplinary Authority

    is based on no evidence. According to him, there is neither direct

    nor cogent, much less corroborative evidence to establish that

    the petitioner had personally activated the dormant pension

    accounts, effected payments in gross violation of the bank’s

    norms, or misappropriated a sum of Rs. 38.67 lakhs. He further
    10

    submitted that even the Enquiry Officer, in his report, did not

    return any finding conclusively holding the petitioner guilty of

    such acts.

    iv) He submitted that, in the present case, it was the bank itself

    that forwarded the relevant documents to obtain the opinion of a

    handwriting expert. A crucial aspect of the matter is the expert’s

    report, which clearly opined that the signatures appearing on the

    disputed withdrawal slips, through which a sum of Rs.

    38,67,000/- was allegedly misappropriated, were not those of

    the petitioner. In view of such categorical opinion of the

    handwriting expert confirming that the signatures belonged to

    other individuals, it was contended that the Enquiry Officer

    could not have conclusively connected the petitioner with the

    alleged act of forging the withdrawal documents.

    v) Referring to certain portions of the evidence of MW-1 and

    MW-2, he submitted that both the witnesses deposed that, in the

    ordinary course of business, an illiterate customer approaches a

    designated officer of the branch with the withdrawal slip for

    authentication. Thereafter, the passbook and the withdrawal slip

    are placed before the paying cashier, who enters the relevant

    data in the Finacle system. The documents are then forwarded to

    the dealing officer for cancellation of the LTI, and upon such

    cancellation, they are returned to the paying cashier for

    disbursement of payment. However, in the present case, he

    claimed, MW-1 was unable to identify the officers who had
    11

    authenticated the withdrawal slips or cancelled the LTIs of the

    concerned customers.

    vi) Referring to the minutes of the proceedings dated 2nd

    February, 2018, Mr. Ghosal submitted that, despite a specific

    request made on behalf of the petitioner, the bank failed to

    produce the documents on the basis of which the petitioner had

    allegedly entered the relevant data into the system.

    vii) Inviting attention to the deposition of MW-2, Mr. Ghosal

    submitted that MW-2, who was serving as a manager of the

    bank, admitted that it is the designated officer who is authorised

    to obtain and verify the KYC documents of a customer. He

    further admitted that it would not be possible for a paying

    cashier to ascertain the particular officer, along with his SOL, by

    whom a payment voucher exceeding Rs. 50,000/- had been

    posted and/or verified. It was also acknowledged by MW-2 that

    the petitioner was not empowered to check or verify the LTI of a

    customer. Moreover, MW-2 stated that the report of the

    handwriting expert did not reveal anything adverse against the

    petitioner.

    viii) Mr. Ghoshal contended that the Disciplinary Authority,

    proceeding merely on presumptions and assumptions,

    concluded that all the charges stood proved against the

    petitioner. He submitted that such a finding, being unsupported

    by cogent evidence, is wholly unsustainable in law. He also

    claimed that the appellate authority has mechanically affirmed
    12

    the decision of the DA and accordingly, he claimed, findings of

    the AA cannot be allowed to stand.

    ix) He claimed that even if it is assumed that it has been proved

    that the petitioner’s User ID was used and no denominations

    were mentioned on the reverse of the withdrawal slips, for that

    reason, a punishment of ‘dismissal without notice’ is

    disproportionate.

    7. In rebuttal, Mr. Majumder, learned advocate appearing for the respondent

    bank and its functionaries, argued that a writ court cannot sit in appeal over

    the decision of the Disciplinary Authority or reappreciate the evidence

    recorded during the departmental enquiry proceedings. In support of such

    contention, Mr. Majumder relied upon the decisions reported in (2003) 3 SCC

    583 (Lalit Popli vs. Canara Bank & Ors.), (2003) 9 SCC 191 (Sub-Divisional

    Officer, Kouch vs. Maharaj Singh), (1997) II LLJ 26 (Tara Chand Vyas vs.

    Chairman & Disciplinary Authority & Ors.) and (2015) 2 SCC 610 (Union of

    India & Ors. vs. P. Gunasekaran).

    8. He submitted that, in the present case, upon due assessment of the

    evidence on record and by applying the principle of preponderance of

    probabilities, the bank arrived at a finding that the charges levelled against the

    petitioner stood proved. According to him, it has been conclusively established

    that the petitioner entered the relevant data in the Finacle system by using his

    User ID, effected payments in respect of 19 dormant pension accounts and

    misappropriated a sum of Rs. 38.67 lakhs.

    9. He contended that, in the present case, there is no flaw in the decision-

    making process and that every opportunity was afforded to the petitioner to
    13

    defend himself. Therefore, according to him, there is no scope for interference

    in the case at hand.

    10. He contended that a bank employee deals with public money and, as such,

    a high standard of integrity is expected from him and that, in a disciplinary

    proceeding initiated against him, a strict view is required to be taken. To lend

    support to such contention, he referred to the decision reported in (1998) 4

    SCC 310 (Union Bank of India vs. Vishwa Mohan).

    11. Mr. Majumder asserted that, in respect of a disciplinary proceeding

    against a bank employee, proof of actual monetary loss is not necessary;

    rather, gross negligence involving or likely to involve the bank in serious loss

    is sufficient and, in support of such contention, he relied upon the decision

    reported in (1999) 4 SCC 759 (State Bank of India & Ors. vs. T.J. Paul).

    12. By referring to the decision reported in (2009) 13 SCC 272 (Government

    of Andhra Pradesh & Ors. vs. P. Chandra Mouli & Anr.), he contended that the

    power to punish an employee fall within the domain of the employer and that

    Courts ordinarily do not interfere unless it is found that the enquiry

    proceedings or the punishment is vitiated due to non-observance of the

    relevant rules or principles of natural justice, or that the punishment is

    disproportionate to the proved misconduct.

    13. He claimed that when a bank employee is proved to have been involved in

    misappropriation of funds, there is nothing improper in awarding the

    punishment of dismissal from service and that such punishment is

    appropriate; in support of such contention, he cited the decision reported in

    (2005) 3 SCC 254 (Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane).

    He further asserted that, in the present case, the magnitude of
    14

    misappropriation of funds justifies the dismissal of the petitioner without

    notice in order to preserve institutional discipline and public trust.

    Analysis and conclusion:

    14. The record reveals that the respondents raised a preliminary issue

    regarding the maintainability of the writ petition in view of the fact that the

    petitioner, being a workman within the meaning of Section 2(s) of the

    Industrial Disputes Act, 1947, cannot maintain a writ petition before this

    Court. A Co-ordinate Bench of this Court, by an order dated 20.03.2024

    passed in this writ petition, determined the said issue and held that the writ

    petition is maintainable. The order dated 20.03.2024 has not been assailed by

    either of the parties and, as such, the same has attained finality. The said

    order is binding upon the respondent bank and the bank cannot now re-

    agitate the self-same issue.

    15. As noticed previously, in the present case, three charges were levelled

    against the petitioner which are as follows:

    i) With dishonest intention and in gross violation of the Bank’s

    operational norms, systems and procedures, the petitioner

    resorted to unauthorisedly activating 19 (nineteen) dormant

    pension accounts (as detailed in the charge sheet) by entering the

    related data in the Finacle system of the Branch without any

    request from the concerned account holders and without

    obtaining KYC documents. Subsequently, by way of a

    corrigendum, the words “without obtaining KYC documents” were

    omitted and a table containing particulars of three accounts,
    15

    along with the dates of activation and the last withdrawal dates in

    respect thereof, was incorporated.

    ii) After unauthorisedly activating the aforesaid accounts in the

    manner stated above, the petitioner, in gross violation of the

    Bank’s operational norms, systems and procedures, made cash

    payments from 11 (eleven) of such activated dormant pension

    accounts on the basis of withdrawal slips by posting the related

    data in the system, without any valid mandate and without proper

    authentication/cancellation of the signatures/LTIs of the account

    holders by the Branch officials, and without recording the

    denominations on the reverse of the withdrawal slips, barring 4

    (four) instances.

    iii) The petitioner, in the aforesaid manner, misappropriated the

    Bank’s funds aggregating Rs. 38.67 lakhs from the aforesaid

    activated dormant pension accounts, in connivance with Shri

    Sudip Das, a Staff Officer earlier posted at the Kharagpur Branch

    and subsequently transferred to the Kantapahari Branch, and Shri

    Kamal Kumar Bhattacharya, Manager of the Kantapahari Branch.

    16. As noticed previously, in the present case, the Enquiry Officer returned a

    finding that Charge-I(i) was partially proved, Charge-I(ii) was proved, and the

    charge mentioned under paragraph 4 at page 3 was not proved.

    17. However, the Disciplinary Authority disagreed with the said findings of the

    Enquiry Officer and ultimately held that all the charges stood proved and

    imposed the punishment of “Dismissal without notice”. The statutory appeal
    16

    preferred by the petitioner against the said order of punishment was also

    decided against him.

    18. In the present case, Mr. Ghosal did not contend that there was any

    illegality in the decision-making process; rather, it was urged on behalf of the

    petitioner that the decision is perverse and unsupported by evidence. It was

    further submitted that although the Enquiry Officer himself observed that

    there was no direct evidence linking the petitioner to the charges, he

    nonetheless held Charge-I(i) to be partially proved and Charge-I(ii) to be

    proved, while the other charge was not proved. According to him, the

    Disciplinary Authority mechanically reversed the said findings without proper

    analysis of the evidence and merely on presumptions.

    20. Indisputably, judicial review encompasses illegality, irrationality

    (including Wednesbury unreasonableness), and procedural impropriety. The

    doctrine of reasonableness gives way to the doctrine of proportionality.

    Judicial review aims to prevent arbitrariness, irrationality, unreasonableness,

    bias, and mala fides. Article 14 requires fairness in state action. While judicial

    review is generally limited to the decision-making process, a decision that is

    perverse, irrational, or grossly disproportionate falls within its scope.

    Although a writ court cannot sit in appeal over the decision of the disciplinary

    authority or re-evaluate the evidence recorded during the inquiry, it may

    examine the evidence to assess whether the allegation that the decision is

    based on no evidence is justified.

    21. In disciplinary proceedings also, admittedly, the scope of judicial review

    is generally limited to examining the decision-making process. The authority

    to punish an employee lies within the employer’s domain, and courts typically
    17

    refrain from intervening unless it is established that the enquiry proceedings

    have been tainted due to the failure to adhere to established rules or principles

    of natural justice. This includes the denial of a reasonable opportunity for the

    employee to defend themselves, or where the punishment is found to be

    disproportionate to the proven misconduct.

    22. The principles of natural justice require that the findings recorded in a

    disciplinary proceeding must be founded on some evidence on record.

    Suspicion, however grave, cannot take the place of proof. It is well settled that

    in matters arising out of departmental proceedings a writ court does not sit in

    appeal over the findings of the disciplinary authority. Nevertheless, where it is

    alleged that the impugned finding is based on no evidence, the writ court is

    not precluded from examining whether there existed any material on record to

    sustain such finding and, if it finds that the conclusion is unsupported by any

    evidence, the same would be liable to be interfered with in exercise of judicial

    review.

    23. In the peculiar facts and circumstances of the case, upon evaluation of the

    evidence brought on record both the management and the petitioner, the EO

    returned his findings dated 27.04.2018, wherein it was recorded, inter alia, as

    follows:

    “(iv) During enquiry, any ill motive, nexus or unholy
    alliance of the CSE with Sudip Das, PF no. 201334, staff officer
    &/or with Kamal Bhattacharya, PF no. 144298, erstwhile
    Branch Manager of Kantapahari Branch, was not established.

    (v) Finally, there is no evidence to establish that the
    CSE has misappropriated Rs. 38, 67,000/- i.e. the aggregate
    18

    amount of 17 disputed withdrawal slips, which were paid by
    the CSE under his user ID BA 167915, instead of paying the
    amounts to the respective pensioners/persons appeared before
    the CSE’s Cash counter for receiving payments.

    (vi) Based on the aforesaid discussion/analysis & also
    discussions/analysis made under Charge-I(i) and Charge-I(ii)
    & on the basis of preponderance of probability, the allegations
    made against the CSE vide Para 4 (Page-3) of Chargesheet
    dated 25.10.2017 & the relevant portion of Corrigendum dated
    01.12.2017 stand Not Proved.”

    25. In the enquiry report, it was specifically observed that the applications of

    the pensioners and their KYC documents were not available in the branch on

    the basis of which the petitioner was alleged to have entered data in the

    Finacle system of the branch. It was further noted that the management did

    not produce any designated officer of the branch, such as the Branch Head or

    the Manager (Administration), who were posted during the relevant period, to

    establish that no instruction had been issued to the CSE for carrying out the

    said task. In the absence of any documentary or oral evidence, it was found to

    be extremely difficult to ascertain the correct factual position. The report also

    observed that, in the absence of any circumstantial evidence, it would not be

    logical to conclude that the CSE had entered the data for activation of the

    accounts with any dishonest intention.

    26. The Enquiry Officer observed that the CSE had performed the

    preliminary work for activating the accounts, which took effect only upon

    authorization of the transactions under the user IDs of Sudip Das and K.K.

    Bhattacharya. During the enquiry, no ill motive, unholy alliance, or
    19

    connivance between the petitioner and Mr. Das or Mr. Bhattacharya came to

    light.

    27. Regarding Charge No. I(ii), the Enquiry Officer observed that, in the

    absence of CCTV footage, it was not clear whether the withdrawal slips

    presented to the CSE were accompanied by the passbooks containing

    photographs of the respective pensioners.

    28. In his findings, the Enquiry Officer observed that there was no concrete

    evidence regarding the death of the respective pensioners or their non-

    availability at the recorded addresses during the relevant period.

    29. The Enquiry Officer further observed that the Document Examiner had

    opined that the CSE was not involved in the alleged forgery; rather, it was the

    Head Cashier of the branch who had forged the signatures/initials by which

    the LTIs on the disputed withdrawal slips were authenticated. The Enquiry

    Officer also noted that, had the CSE harboured any ill motive, he would have

    ensured that the denominations on the reverse of the withdrawal slips were

    properly recorded.

    30. Therefore, the Enquiry Officer himself observed that there was no

    concrete evidence to establish that the respective pensioners had died or had

    changed their recorded addresses during the relevant period, which struck at

    the very foundation of the management’s case. The Enquiry Officer further

    noted that the applications of the pensioners and their KYC documents, on the

    basis of which the petitioner was alleged to have entered data in the Finacle

    system of the branch, were not available in the branch records. The

    management also failed to produce any designated officer of the branch, such

    as the Branch Head or the Manager (Administration), who had been posted
    20

    during the relevant period, to establish that no instruction had been issued to

    the CSE for carrying out the said work. In such circumstances, the Enquiry

    Officer observed that there was no oral, documentary, or circumstantial

    evidence to substantiate Charge No. I(i). He also observed that CCTV footage

    would have been necessary to establish Charge No. I(ii). In respect of the

    remaining charge, the Enquiry Officer relied upon the opinion of the

    handwriting expert, who opined that the CSE was not involved in the alleged

    forgery.

    31. However, in his ultimate findings, EO held that the charge-I (i) was partly

    proved, charge- I(ii) stood proved whereas the other charge stood not proved.

    32. The Disciplinary Authority disagreed with the findings of the Enquiry

    Officer and recorded that, in departmental proceedings, the applicable

    standard of proof is that of “preponderance of probabilities” and not proof

    beyond reasonable doubt. It was further observed that the fact that the

    transactions were executed through the petitioner’s user ID was sufficient to

    attribute responsibility to him.

    33. In his findings regarding Charge I(i), the Disciplinary Authority observed

    that the Presenting Officer (PO) had examined management witnesses whose

    oral evidence, in his view, substantiated the charge in the enquiry. He further

    held that although no supporting documents were available before the CSE for

    entering the relevant data for activation of the accounts, the certification of

    the Branch Head that no such documents existed in the branch records

    corroborated that the CSE had acted in an unauthorised manner. The DA also

    noted that most of the data had been verified as SOL, indicating absence of

    any instruction from the branch officials. According to him, these
    21

    circumstances reflected an ill motive on the part of the CSE, and therefore the

    view taken by the Enquiry Officer on Charge I(i) was unjustified.

    34. With regard to the charge referred to in paragraph 4 at page 3, the

    Disciplinary Authority observed that the CSE had effected payments in respect

    of 17 disputed withdrawal slips. In 11 of those transactions, the LTIs of the

    pensioners were cancelled by a single official instead of two branch officials,

    despite the presence of four officers at the branch during the relevant period.

    In one instance, the LTI of the customer was not cancelled by any official.

    According to the Disciplinary Authority, the CSE had grossly overlooked these

    irregularities and had not brought such discrepancies to the notice of the

    branch officials. It was further noted that in 13 out of the 17 transactions the

    denominations of the currency notes were not recorded on the reverse of the

    withdrawal slips. Most of these transactions were verified by officers of other

    SOLs, which, in the view of the Disciplinary Authority, indicated that the

    instructions for such transactions had not emanated from the officials of the

    branch.

    35. It was further observed by the Disciplinary Authority that several of the

    pensioners had not operated their accounts for nearly ten years and that many

    of them had either expired or shifted their places of residence. In such

    circumstances, they were unlikely to have personally appeared to withdraw

    the pension amounts. The Disciplinary Authority, therefore, raised the

    question as to whom the payments had actually been made by the CSE. On the

    basis of these circumstances, he concluded that the CSE had misappropriated

    the cash with ulterior motive, in connivance with the staff officers of the
    22

    Kantapahari Branch, and accordingly held that all the charges stood proved

    against the CSE.

    36. Therefore, a comparative reading of the findings of the Enquiry Officer

    and the Disciplinary Authority reveals a clear divergence. While the Enquiry

    Officer observed that the management had failed to produce the documents

    on the basis of which the CSE allegedly carried out the preliminary work of

    entering data in the system for activation of the accounts and held that, in the

    absence of oral, documentary or circumstantial evidence, it would be illogical

    to infer any dishonest intention on the part of the CSE, the Disciplinary

    Authority, by merely paraphrasing certain portions of the Enquiry Officer’s

    report and the written submissions of the CSE, concluded that the oral

    evidence adduced by the management substantiated the charges. The

    Disciplinary Authority further treated the absence of documentary evidence as

    corroborative of the allegation that the CSE had acted in an unauthorised

    manner by entering the dates for activation of the concerned accounts,

    without undertaking any independent discussion of the evidence on record.

    37. The Enquiry Officer observed that the management had failed to produce

    the Branch Head or any other designated officer to establish that the CSE had

    acted without any instruction from the branch officials. However, the

    Disciplinary Authority concluded that since most of the data had been verified

    as SOL, it indicated that no instruction had emanated from the branch

    officers. If such verification in SOL was by itself sufficient to establish the

    charges, there would have been no necessity to hold a departmental enquiry or

    to adduce evidence for examining the validity of the allegations.
    23

    38. The Enquiry Officer observed that there was no evidence to establish that

    the pensioners had died or had changed their addresses, and the handwriting

    expert had also opined that the CSE was not involved in the alleged forgery.

    However, the Disciplinary Authority merely raised a question as to whom the

    CSE had made those payments and, on that basis, proceeded to conclude that

    the CSE had misappropriated a sum of Rs. 38.67 lakhs.

    39. In a disciplinary proceeding against a bank employee for alleged

    misappropriation from pension accounts, the charge of misappropriation

    must be established on the basis of evidence placed on record in the enquiry.

    Although the standard of proof in departmental proceedings is not as strict as

    in a criminal trial, the finding must still be supported by reliable material and

    reasonable inference drawn from the evidence.

    40. In service jurisprudence, the disciplinary authority is required to establish

    the charge on the basis of the preponderance of probabilities. This implies that

    the conclusion arrived at in the disciplinary proceeding must reasonably flow

    from the materials available on record. Such materials may include

    documentary evidence, system or official records, testimony of witnesses,

    circumstantial evidence, expert opinion and other relevant materials produced

    during the enquiry. The findings, therefore, must be supported by some

    evidence on record and cannot rest merely on conjectures or assumptions. In

    other words, upon examination of the evidence, it must appear to a prudent

    person that it is probable that the CSE had committed the misconduct.

    41. Where the allegation in a disciplinary proceeding relates to

    misappropriation of funds, the enquiry is ordinarily required to establish

    certain essential elements. It must be shown that the money belonging to the
    24

    account holders or the bank was wrongfully withdrawn or diverted, that such

    withdrawal was unauthorized or irregular, and that the delinquent employee

    was responsible for, or involved in, the said act. If these elements are not

    supported by evidence on record, the charge of misappropriation cannot

    logically be sustained.

    42. Therefore, it is quite vivid and luminescent that the decision of the DA was

    based on no evidence and therefore, the submissions of Mr. Ghosal appears to

    be justified.

    43. It is also to be considered that activation of a dormant account is not a

    unilateral process and such a job claims involvement of more than one

    employee. The Enquiry Officer noted that the management witnesses had

    admitted that, as per bank’s operational norms, a withdrawal slip placed by an

    illiterate customer is first placed before an officer who authenticate the LTI

    and then the slip comes to cash paying employee who entered the relevant

    data in the system and then against it goes to officer of the bank for

    cancellation of LTI and then again it comes to the cash paying employee. In

    the present case, it has been proved that relevant data were entered under the

    User ID of the petitioner; however, surprisingly, no documents have been

    traced in the bank based on which, the petitioner had entered such data. It has

    also not been proved that who authenticated and/or cancelled the LTIs of the

    pensioners.

    44. The Enquiry Officer further observed that it would not be possible for the

    cash-paying staff to ascertain who had authenticated the LTI. In the present

    case, it was also submitted that no disciplinary proceeding had been initiated

    against any other staff member of the branch. In such circumstances, it
    25

    appears wholly improbable that the entire process was carried out solely by

    the petitioner and that he alone misappropriated the entire amount.

    45. The management placed reliance upon the system-generated transaction

    logs, withdrawal instruments, and internal procedural circulars concerning

    dormant account activation and the DA held that the fact that activation of the

    accounts through the petitioner’s User ID was sufficient to attribute

    responsibility and as the petitioner overlooked that LTIs on certain

    withdrawal slips were not authenticated and/or cancelled, the petitioner acted

    with dishonest intention and misappropriated a sum of Rs. 38.67 lacs.

    46. Basically, it can be stated that upon perusal of the records, it is apparent

    that the management only could prove from the system-generated transaction

    logs, certain data were entered in the system under the user ID of the

    petitioner and payment was made by the petitioners without recording

    denominations on the reverse of the certain withdrawal slips and the

    petitioner overlooked that LTIs appearing on certain withdrawal slips were

    not properly authenticated and/or cancelled by two officers of the bank. Here,

    the EO himself observed that the death or change of address of pensioners

    were not proved and therefore, misappropriation was also not proved

    satisfactorily.

    47. Undoubtedly, it is within the discretion of the Disciplinary Authority to

    determine the appropriate punishment. It is only when punishment is found

    outrageously disproportionate to the nature of charge that it shocks

    conscience of Court and the Court finds it totally unreasonably and arbitrary,

    the principle of proportionality becomes applicable.
    26

    48. Therefore, the acts which, at best, can be said to have been proved against

    the petitioner, namely entering data in the system for activating certain

    accounts without any dishonest intention, failure to record denomination on

    the reverse of certain withdrawal slips, and overlooking the fact that the LTIs

    appearing on certain withdrawal slips were not properly authenticated and/or

    cancelled, do not appear to warrant the imposition of the extreme penalty of

    dismissal in service jurisprudence.

    49. I have carefully considered the decisions cited by Mr. Majumder. There is

    no scintilla of doubt regarding the binding nature of the precedents laid down

    in those decisions. However, in the present case, the specific contention of the

    petitioner is that the impugned decision is based on no evidence. The

    respondents have failed to shed any light on this aspect and have instead

    placed reliance upon those decisions; however, the same do not come to the

    aid of the respondent bank in the facts of the present case.

    50. In such conspectus, the decision of the DA cannot be sustained.

    Accordingly, the order of the DA is set aside. As the Appellate Authority

    glossed over these aspects, the order of the AA is also quashed.

    51. In disciplinary matters, a writ court does not ordinarily substitute its own

    findings for those of the disciplinary authority. If the court finds that the

    enquiry or the decision-making process suffers from a procedural defect, such

    as violation of the principles of natural justice, non-consideration of relevant

    materials, or reliance on inadmissible evidence, the normal rule is not to

    finally set aside the entire proceeding. Instead, the matter is generally

    remitted to the competent authority from the stage at which the defect
    27

    occurred, so that the proceedings may be continued and concluded in

    accordance with law.

    52. Accordingly, the matter is remanded to the Disciplinary Authority from

    the stage of submission of the enquiry report and the written submission filed

    by the petitioner. The Disciplinary Authority is directed to reconsider the

    enquiry report in its proper perspective and in accordance with law, without

    being influenced by his earlier decision. While doing so, the Disciplinary

    Authority shall take into consideration the written submission submitted by

    the petitioner to the enquiry report as well as the observations made in this

    order and shall thereafter take a fresh decision in the matter. Such exercise

    shall be completed within a period of four weeks from the date of receipt of a

    copy of this order.

    53. With these observations and order, the writ petition being WPA 10517 of

    2019 is, thus, disposed of; however, without any order as to the costs.

    (Partha Sarathi Chatterjee, J.)

    Later : –

    After pronouncement of this judgment, Mr. Obaidullah, learned Advocate

    appearing for the Respondents/Bank prays for stay of operation of the judgment.

    Such prayer is considered and rejected.

    (Partha Sarathi Chatterjee, J.)



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here