Bidyut Baran Halder vs United Bank Of India & Ors
2022 Latest Caselaw 1874 Cal

                                        1


                    IN THE HIGH COURT AT CALCUTTA

                     (Constitutional Writ Jurisdiction)

                              APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                            WPA 17834 of 2019

                            Bidyut Baran Halder

                                   Versus

                        United Bank of India & Ors.



            Mr. Sirsanya Bandopadhyay
            Mr. Soham Kumar Roy
                                                  .....For the Petitioner
            Ms. Parna Roy Chowdhury
            Ms. Payel Ghosh
                                                .....For the Respondent/Bank

Heard on                 : 23.02.2022

Judgment on              : 07.04.2022

Krishna Rao, J.: The instant writ application is directed against the order

passed by the Assistant General Manager (D & IR), United Bank of India,

Head Office, 11, Hemanta Basu Sarani, Kolkata dt. 28.03.2019 wherein the

request of the petitioner for grant of compassionate allowance is rejected.

Initially the petitioner was appointed in the clerical cadre in the year

1981 and was posted as Cash Cleck. In the year 2004 the petitioner was

selected as Computer Operator in the sanctioned post in terms of the

Memorandum of Settlement dt. 29th, October, 1993. On completion of

unblemished 25 years of service, the petitioner was awarded with Silver

Jubilee Award.

In the year 2007, the respondent bank noticed about unusual

transactions from the account of the petitioner and with the Over Darft

Account maintained in the bank. On 1st November, 2007, the bank had

issued notice to the petitioner and directed the petitioner to clarify about

the unusual transactions. Though the petitioner had submitted his

clarification but the bank was not satisfied with the same and accordingly

the petitioner was transfered from Kulpi Branch to Malda Region. The Bank

had also initiated disciplinary enquiry against the petitioner by issuance of

chargesheet dt. 7th July, 2008. On completion of enquiry, the disciplinary

authority had passed an order of penalty of Dismissal without Notice in

terms of Clause 6 (a) of the Memorandum of Settlement.

After the dismissal of the petitioner from service, the petitioner had

made representation for release of his pensionary benefits but the same was

rejected on the ground of dismissal from service without notice under

Clause 6 (a) of the Bipartite Settlement dt. 10th April, 2002. Thereafter the

petitioner had made an application on 11th July, 2018 to the respondent

Bank praying for grant of Compassionate Allowance with effect from 1st

June, 2009 in terms of Clause (1) and (2) of the Regulation 31 of the United

Bank of India ( Employees) Pension Regulation, 1995.

As the request made by the petitioner for grant of Compassionate

Allowance was not considered and was pending before the bank and

accordingly the petitioner had preferred a writ application before this Court

being WP No. 20498 (W) of 2018 and the coordinate bench of this Court had

disposed of the said writ application on 21.12.2018 by directing the bank to

take a reasoned decision within a period of eight weeks. After the order

passed by the coordinate bench of this court the bank had passed the

impugned order on 28.03.2019.

Mr. Sirsanya Bandopadhyay, Ld. Advocate representing the petitioner

submitted that the Hon'ble Division Bench of this Court in its order dt. 18th

January, 2018 held that petitioner did not cause any damage or loss or

destruction of property belonging to the bank and the petitioner was

dismissed from service without any financial implication and admittedly the

bank has not sufferred any pecuniary loss. It is further submitted that

under Regulation 31 of the United Bank of India Employees' Pension

Regulation, 1995, the petitioner is entitled to get compassionate allowances.

The counsel for the petitioner further urged that the petioner had

rendered 28 years of service and due to his unblemised service on

completion of 25 years the petitioner was awarded with Silver Jubilee

Award. It is further argued that the petitioner is a senior citizen and

belongs to Schedule Caste category and is facing financial hardship to

maintain his family and is also suffering from various ailment.

Ld. Counsel for the petiitoner further submitted that as per Clause 45

(a) of the 11th Bipartite Settlement dt. 11.11.2020 Clause 5 (j), from the

date of settlement shall be read as under:

" doing any act of gross negligence or negligence involving or likely to involve the bank in serious loss"

By referring the said clause the petitioner submitted that the bank

has not sufferred any serious loss.

Ld. Counsel for the petitioner further relied upon clause 45 (g) of the

11th Bitartite Settlement dt. 11.11.2020 which reads as follows :

The following shall be added as clause 7 (r):

" Misconducts covered under clause 7 (a) to (q) shall not be made out as 'gross misconduct' under clause 5."

The counsel for the petitioner submitted that the petitioner has not

committed any gross misconduct.

The counsel for the petitioner relied upon the judgements reported in

(2014) 11 SCC 684 (Mahinder Dutt Sharma - versus - Union of India &

Ors), (1994) 2 SCC 594 (Hindalco Industries Ltd.- versus- Union of India &

Ors) and (2020) 9 SCC 510 ( Trustees of H.C. Dhanda Trust - versus- State

of Madhya Pradesh & Ors).

Ms. Parna Roy Choudhury, Ld. Advocate representing the respondent

bank submitted that being aggrieved with the order of the disciplinary

authority, the petitioner had preferred an appeal but the same was also

dismissed and now the petitioner has filed writ petition challanging the

order of the disciplinary authority and appellate authority and the same is

pending for adjudication. Ld. Counsel had further submitted that

subsequent to imposition of punishment, terminal benifits as admissible to

the petitioner is already paid to the petitioner.

Ld. Counsel for the respondent further submitted that during the

enquiry it was found that an amount of Rs. 5,98,952/- and Rs. 5,50,000/-

were withdrawn by the petitioner from the Cash Credit account of

Ghatakpukur Bharatmata Self Help Group on 26.05.2006 and 05.06.2007

respectivelly and out of the said amount an amount of Rs. 2,50,000/- was

credited to the petitioner's Over Draft account and an amount of Rs.

5,70,000/- was credited to the joint account of the petitioner and his wife.

Ld. Counsel for the respondent further submitted that it is also proved

that the said amount was subsequently withdrawn from the said account. It

was also proved that the daughter and the wife of the petitioner were the

treasurer and secretary of the said Self Help Group.

The Counsel for the respondent further submitted that the petitioner

had not only misutilized his possession as an employee of the bank by

channelizing the amount of loan sanctioned for Ghatakpukur Bharatmata

Self Help Group by depositing the same in his own Over Draft account and

also in the joint account maintained by the petitioner and his wife. It is

further submitted that the petitioner had also withdrawn the amount from

time to time for his personal gain, thereby defeating the very purpose of

sanctioning the loan to Self Help Group. It is further submitted that the

fund borrowed from the bank was siphoned and utilized for the purpose

totally unrelated to the operation of Self Help Group.

The Counsel for the respondent further submitted that Compassionate

Allowance cannot be sought as a matter of right unless there are some

exceptional circumstances. The Counsel for the respondent further

submitted that the bank is entitled to recover an outstanding balance

account in four loan accounts availed by the petitioner during his service

period. The Counsel for the respondent further submitted that the

petitioner had already assailed the order of punishment before the Hon'ble

High Court and the same is pending for adjudication. The Counsel for the

respondent also relied upon the judgment reported in (2014) 11 SCC 684

(Mahinder Dutt Sharma -vs- Union of India & Ors.).

Considered the rival submissions of the parties, documents available

on record and the judgment relied by the parties. In the year 2007, the

bank came to know that the petitioner has made some unusual transaction

in the Over Draft account of the petitioner and bank had issued notice to

the petitioner for clarification. The petitioner failed to submit justification

with regard to the said unusual transaction and accordingly, the

disciplinary proceeding was initiated. The petitioner participated in the

disciplinary proceeding and during the disciplinary proceeding it was proved

that an amount of Rs. 5,98,952 and Rs. 5,50,000/- was withdrawn from the

Cash Credit account of Ghatakpukur Bharatmata Self Help Group on

26.05.2006 and 05.06.2007 respectively and out of the said amount, an

amount of Rs. 2,50,000/- was credited in the Over Draft account of the

petitioner and an amount of Rs. 5,70,000/- was credited in the joint

account of the petitioner and his wife. It was further proved that the

deposited amount was subsequently withdrawn from the said account.

During the enquiry it is also proved that the daughter of the petitioner and

the wife of the petitioner are the treasurer and secretary of the said Self Help

Group. After completion of the enquiry, the petitioner was dismissed from

service without notice in terms of Clause 6 (a) of the Memorandum of

settlement dt. 10.04.2002. After the order of punishment, the petitioner has

made an application before the Disciplinary Authority for grant of

Compassionate Allowance in terms of Clause 31 of United Bank of India

(Employees) Pension Regulation 1995.

Clause 31 of the Regulation reads as follows:-

"31. Compassionate Allowance.

(1) An employee, who is dismissed or removed or terminated from service, shall forfeit his pension

Provided that the authority higher than the authority competent do dismiss or remove or terminate him from service may, if-

(i) such dismissal, removal, or termination is on or after the 1st day of November, 1993; and

(ii) The case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of the pension which would have been admissible to him on the basis of the qualifying service rendered up to the date of his dismissal, removal, or termination.

(2) The Compassionate Allowance sanctioned under the proviso to sub-regulation (1) shall not be less the amount of minimum pension payable under Regulation 36 of these regulations."

The Competent Authority had rejected the request of the petitioner for

grant of Compassionate Allowance by passing the following order:-

"Thus, after careful evaluation of your claim for compassionate allowance in the light of solemn order dated 21/12/2018 passed by Hon'ble Justice Arijit Banerjee of Calcutta High Court in W.P. no. 20498 (W) of 2016, I find that you have not brought in any extenuating circumstances warranting sanction of compassionate allowance to you rather, you sought it as a right. Since, you had failed to bring in any extenuating circumstances and as your services were terminated for acts involving element of fraud, I do not find your case to be deserving to be considered for compassionate allowance

under Regulation 31 of the United Bank of India (Employees') Pension Regulations, 1995 and hence, your representation dated 01/08/2018 is hereby, rejected."

The petitioner had relied upon the judgment passed by the Division

Bench of this Court in MAT 1522 of 2017 dt. 08.01.2017 and submitted that

the Hon'ble Division Bench has held that bank had not suffered any

pecuniary loss by reason of alleged misconduct of the petitioner and as such

the petitioner is entitled to get the Compassionate Allowance. The Hon'ble

Division Bench had passed the said order in connection with release of

gratuity of the petitioner as the authorities have not released the gratuity

amount to the petitioner and accordingly, the petitioner had approached the

Hon'ble High Court. In the said case, there was no occasion for the Hon'ble

Division Bench to deal with the matter regarding grant of Compassionate

Allowance. The respondents inflicted punishment upon the petitioner for

dismissal from service due to the act of dishonestly towards the employer

Bank and thus the said judgment is not applicable in the instant case. The

petitioner as well as the respondents relied upon the judgment reported in

(2014) 11 SCC 684 (Mahinder Dutt Sharma -vs- Union of India & Ors.). In

the said case, the Hon'ble Supreme Court framed the guidelines to

determine the claim of Compassionate Allowance which are as follows:-

"14. In our considered view, the determination of a claim based under Rule 41 of the Pension Rules, 1972 will necessarily have to be sieved through an evaluation based on a series of distinct considerations, some of which are illustratively being expressed hereunder:

14.1. (i) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of moral turpitude? An act of moral turpitude is an act which has

an inherent quality of baseness, vileness or depravity with respect to a concerned person's duty towards another, or to the society in general.

In criminal law, the phrase is used generally to describe a conduct which is contrary to community standards of justice, honesty and good morals. Any debauched, degenerate or evil behaviour would fall in this classification.

14.2. (ii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of dishonesty towards his employer? Such an action of dishonesty would emerge from a behaviour which is untrustworthy, deceitful and insincere, resulting in prejudice to the interest of the employer. This could emerge from an unscrupulous, untrustworthy and crooked behaviour, which aims at cheating the employer. Such an act may or may not be aimed at personal gains. It may be aimed at benefiting a third party to the prejudice of the employer.

14.3. (iii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act designed for personal gains from the employer? This would involve acts of corruption, fraud or personal profiteering, through impermissible means by misusing the responsibility bestowed in an employee by an employer. And would include acts of double-dealing or racketeering, or the like. Such an act may or may not be aimed at causing loss to the employer. The benefit of the delinquent could be at the peril and prejudice of a third party.

14.4. (iv) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, aimed at deliberately harming a third-party interest? Situations hereunder would emerge out of acts of disservice causing damage, loss, prejudice or even anguish to third parties, on account of misuse of the employee's authority to control, regulate or administer activities of third parties. Actions of dealing with similar issues differently, or in an iniquitous manner, by adopting double standards or by foul play, would fall in this category.

14.5. (v) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, otherwise unacceptable, for the conferment of the benefits flowing out of Rule 41 of the Pension Rules, 1972? Illustratively, any action which is considered as depraved, perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate consideration.

15. While evaluating the claim of a dismissed (or removed from service) employee, for the grant of compassionate allowance, the rule postulates a window for hope, "...if the case is deserving of special consideration...". Where the delinquency leading to punishment, falls in one of the five classifications delineated in the

foregoing paragraph, it would ordinarily disentitle an employee from such compassionate consideration. An employee who falls in any of the above five categories, would therefore ordinarily not be a deserving employee, for the grant of compassionate allowance. In a situation like this, the deserving special consideration, will have to be momentous. It is not possible to effectively define the term "deserving special consideration" used in Rule 41 of the Pension Rules, 1972. We shall therefore not endeavour any attempt in the said direction. Circumstances deserving special consideration, would ordinarily be unlimited, keeping in mind unlimited variability of human environment. But surely where the delinquency levelled and proved against the punished employee, does not fall in the realm of misdemeanour illustratively categorized in the foregoing paragraph, it would be easier than otherwise, to extend such benefit to the punished employee, of course, subject to availability of factors of compassionate consideration."

In the said judgment the Hon'ble Supreme Court has framed the

guidelines for determination of claim of compassionate allowance and the

case of the petitioner is covered under clause 14.2 and 14.3 of para 14 of

the judgement referred supra and thus this court is of the view that the

petitioner is not entitle to get compassionate allowance.

The petitioner relied upon the judgment reported in (2020) 9 SCC 510

(Trustees of H.C. Dhanda Trust - versus- State of Madhya Pradesh & Ors.)

specifically para 22 of the said judgment but the said judgment is not

applicable in the case of the petitioner as the respondents have exercise

their discretion reasonably and in accordance with law.

The judgement referred by the petitioner reported in (2014) 2 SCC 715

(Bank of Baroda - versus- S.K. Kool & Anr) and relied para 10 of the said

judgment but the same is not applicable in the instant case as the

respondents have acted in terms of Clause 31 of the United Bank of India

(Employees) Pension Regulation, 1995 and the higher authority of the bank

had found that the case of the petitioner does not deserves any special

consideration.

The petitioner relied upon the judgment reported in (1994) 2 SCC 594

(Hindalco Industries Ltd. - versus- Union of India & Ors.) particularly

paragraph 7. In the instant case, the respondents have considered the

request made by the petitioner by taking into account of all aspect and it is

found that the conduct of the petitioner was personal profiteering, through

impermissible means by misusing responsibility bestow upon the petitioner

and thus the said judgment is not applicable in the instant case.

In the instant case, the bank had initiated disciplinary proceeding

against the petitioner on the allegation that the petitioner had withdrawn an

amount of Rs. 5,98,952/- and Rs. 5,50,000/- from the Cash Credit account

of Ghatakpukur Bhatatmata Self Help Group on 26.05.2006 and

05.06.2007 respectively and out of said amount, the petitioner has

withdrawn an amount of Rs. 2,50,000/- was credited to the Over Draft

account of the petitioner and the amount of Rs. 5,70,000/- was credited to

the joint account maintained in the name of the petitioner and his wife.

After full-fledged enquiry the charge levelled against the petitioner was

proved and consequently the petitioner was dismissed from service without

any notice in terms of Clause 6 (a) of the Memorandum of Settlement dt.

10.04.2002, the Hon'ble Supreme Court in the case of Mahinder Dutt

Sharma (supra) has fixed the guidelines with regard to the entitlement of

compassionate compensation. The case of the petitioner is covered in

paragraph 14.2 and 14.3 of the judgment of Mahinder Dutt Sharma (supra).

As per the judgment of Mahinder Dutt Sharma in paragraph 15 it is

held that an employee who falls in any of the above categories would,

therefore, ordinarily not be a deserving employee, for grant of

Compassionate Allowance.

In view of the facts and circumstances as mentioned above this Court

is of the view that the impugned order passed by the Assistant General

Manager dt. 28.03.2019 does not require any interference.

WPA No. 17834 of 2019 is thus dismissed.

Parties shall be entitled to act on the basis of a server copy of the

Judgment and Order placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)