Calcutta High Court (Appellete Side)
Bhaskar Adhikari vs Bank Of India & Others on 10 March, 2026
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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
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
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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.
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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
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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
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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.
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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.
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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
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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:
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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
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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
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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
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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
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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
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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,
15along 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
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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
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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
18amount 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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.)