Sanjay Pundlikrao Netam vs Punjab National Bank, Through Its ...
2017 Latest Caselaw 3044 Bom

   wp1297.12                                                                           1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

                    WRIT  PETITION NO.  1297  OF  2012


  Sanjay Pundlikrao Netam,
  aged 41 years, occupation
  Nil, r/o Yashoda Nagar,
  No. 2, Galli No. 4, Amravati.                       ...   PETITIONER

                    Versus

  1. Punjab National Bank,
     through its General Manager,
     (Appellate Authority)
     Operation, Payments and
     Settlement Division, H.D. 5,
     Sansad Marg, New Delhi - 01.

  2. Punjab National Bank,
     Manager, HRD Department,
     Circle Office, Mumbai.                           ...   RESPONDENTS


  Shri S.P. Palshikar, Advocate for the petitioner.
                      .....

                                 CORAM :       B.P. DHARMADHIKARI &
                                               ROHIT B. DEO, JJ.

JUNE 12, 2017.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

The matter was called out for final hearing on

06.06.2017. Nobody appeared on that day for the respondents

- Bank. After hearing for sometime, at the request of Shri

Palshikar, learned counsel for the petitioner, we adjourned the

matter to today. Today again, there is no appearance for the

respondents.

2. The petitioner was promoted on 14.02.2004 as an

Officer and joined Branch at Mira Road, Mumbai. He has been

dismissed after holding Departmental Enquiry on 20.08.2009.

Appeal preferred against it has been dismissed on 20.09.2010.

These orders are questioned in present writ petition.

3. Shri Palshikar, learned counsel has raised following

contentions :

(i) The complainant from whose accounts ATM withdrawals

have been unauthorizedly effected, has not been examined and

hence charge is not established. In any way, the petitioner did

not get an opportunity to cross examine him.

(ii) The CCTV footage has been wrongly relied upon by

ignoring the specific defence that the petitioner was using his

own ATM card at the relevant time.

(iii) That the confession letter was given due to fear and

disturbed mind is also lost sight of.

(iv) The petitioner deposited the amount of Rs.44,000/- with

his employer and as such there was no loss to it.

(v) The punishment is shockingly disproportionate as it

denies the petitioner even employment in future.

(vi) The Appellate Authority has not properly dealt with the

challenges raised.

4. The contentions above, therefore, show the narrow

sphere in which we have to apply our mind. Holding of

Departmental Enquiry, principles of natural justice or other

similar procedural defects including competency of the

authorities are not the issues to be examined.

5. The discussion, therefore, can start with the report

of Inquiry Officer dated 18.05.2009.

(i) The charge 1(a) is about issuance of Add-on card to Mr.

Rakesh Tripathi on the basis of the application form dated

06.09.2007 received from Mr. Rakesh Tripathi, purported to be

issued by the Account Holder Mr. R.D. Goyal, is held to be

proved. Procedural lapses show that the Add-on card came to

be issued to Rajendra Tripathi, without verifying the signature.

Similarly, ATM Add-on card issued to the person, who was not

related to the Account Holder.

(ii) Charge (b) is withdrawal of amount of Rs.33,676/-. The

Inquiry Officer has found that in the absence of sufficient

documentary/ oral evidence, withdrawal of money from ATM is

not sufficient to hold that the charge is proved.

(iii) Charge (c) is about withdrawal of amount of Rs.10,000/-

on 08.09.2007 from the Punjab National Bank, Mira Road

Branch ATM. It is captured in CCTV camera.

6. The defence of the petitioner was that he used his

own ATM Card to withdraw the money from his account. He

could not prove his defence by producing corresponding details

of his account, co-relating it with time of ATM withdrawals.

The Inquiry Officer has found that the complainant had given

time of withdrawal of amount from ATM which matched with

debit entry of ATM from the account of Rajendra Goyal and

CCTV footage. This, therefore, has been held sufficient to

implicate the petitioner.

7. Charge 1(d) is about the petitioner depositing back

an amount of Rs.44,000/- in customer's account on 18.09.2007.

Though the Enquiry Officer and the Appellate Authority held

that this charge is not established, the petitioner before this

Court has argued that he deposited that amount and relied

upon the deposit receipt in support. The said deposit receipt is

produced as one of the Annexures in the petition at page 37.

8. We have specifically drawn attention of the learned

counsel for the petitioner to this aspect. According to the

learned counsel, this material available on record showing that

the petitioner deposited the amount back in the account of the

complainant has been lost sight of by both the authorities and it

shows non application of mind.

9. The last charge (e) is about his confession in

involvement/ fraudulent actions. The Inquiry Officer has found

that this confession letter is partially proved. He has remarked

that the handwriting in the letter is of the petitioner but then

the Presenting Officer could not prove that it was the statement

given by him without pressure or influence. The petitioner

himself has urged in defence on 19.12.2008 that he gave his

confession under fear. In next sentence he has also added that

he has deposited the amount of Rs.44,000/- back. Thus, the

fact that he submitted confession letter is not in dispute. The

confession letter dated 18.09.2007 is in his handwriting and it

is witnessed by four witnesses. Its reading shows that on 10th

Rajesh Tripathi gave phone call to the petitioner. The

petitioner deposited Rs.500/- and then withdrew amount of

Rs.15,000/- from ATM and gave it to Rajesh. In the evening at

5.30 he withdrawn Rs.5,000/-. He has also mentioned

withdrawal from UTI Bank, Mira Road on 04.09.2007. He also

states that on that day i.e. on 17.09.2007 in the morning at

8.15, he disclosed everything to his Manager and also told that

he would deposit the amount. Accordingly, he deposited the

amount of Rs.44,000/- on 18.09.2007. Thus, events disclosed

by him are showing events from at least 08.09.2007 up to

18.09.2007. Even the confession given by him is first oral on

17.09.2007 and thereafter in writing on next day.

10. We, therefore, find the contention that confession

has been recorded under pressure or he gave it under some

fear, is unsustainable.

11. In these facts, the insistence upon examination of

an Account holder is unwarranted. The Bank may not like its

customer i.e. account holder to enter witness box in such

circumstances. The petitioner was aware that he was using

ATM to effect unauthorized and illegal withdrawal. He was a

Bank employee, enjoying confidence and trust of his employer

and also of customers of Bank.

12. In view of this material on record, we do not see

any perversity in the findings of the Enquiry Officer or then in

non examination of the complainant. Even without bringing it

to the knowledge of customer, employer like Bank could have,

in such circumstances on its own, taken appropriate disciplinary

action against its employee. The Appellate Authority has duly

considered the relevant material and it cannot be ignored that

it has accepted the findings of Inquiry Officer.

13. Considering the post of confidence and trust in the

Bank held by employee, punishment of dismissal also cannot be

said to be disproportionate. We, therefore, find no substance in

the contentions raised by the learned counsel for the petitioner.

Writ Petition is thus dismissed. Rule discharged. However,

there shall be no order as to costs.

           JUDGE                                                   JUDGE
                                           ******

  *GS.