Ashok Kumar Parsad vs Manager, Indian Overseas Bank And ...
2006 Latest Caselaw 1753 Del

JUDGMENT

S. Muralidhar, J.

1. The petitioner was working as a Messenger at the Model Town Branch of Respondent No. 1 bank. A Savings Bank (SB) Account was opened in the joint names of Shri Paras and Shri Dwarika in the branch on 20.8.1995 on the introduction of the petitioner. On 22.4.1997 Shri Paras visited the branch to verify whether a cheque for Rs. 20,000 deposited by him earlier in the account had been cleared. The petitioner who was present at that time advised Shri Paras that the cheque had not been cleared and asked him to hand over the passbook for updating the entries. Shri Paras handed over the passbook to the petitioner forgetting that he had kept a blank signed withdrawal slip in the passbook. The petitioner subsequently got the withdrawal slip filled for Rs. 18,000 and encashed it on 23.4.1997. On 24.4.1997, when Shri Paras visited the branch and sought to withdraw Rs. 10,000, he was informed that the balance in the account was insufficient. He also found that the petitioner was on leave that day. When he enquired whether the cheque of Rs. 20,000 deposited by him had been credited, he was informed that a sum of Rs. 18,000 had already been withdrawn by the petitioner. Thereupon, on the same date i.e. on 24.4.1997, both the account holders made a joint complaint to the Chief Manager of the Model Town Branch of Respondent No. 1 bank asking that the action be taken against the petitioner and the amount unlawfully taken by him be returned.

2. It is the petitioner's case that on 26.4.1997 both the joint account holders gave a further letter to the Chief Manager stating that they were withdrawing the complaint since they had already received the amount. The complaint dated 24.4.1997 was got investigated by the bank. Based on the preliminary investigation, on 14.5.1997 a charge sheet was issued to the petitioner asking him to show cause why action should not be taken against him for having misappropriated a sum of Rs. 18,000. The petitioner was asked to file his reply by 12.6.1997. On the petitioner's request, he was given a further time of one month. However, till 28.9.1997 the petitioner did not file a reply to the charge sheet.

3. Thereafter an Enquiry Officer was appointed and the first date of enquiry was fixed for 8.11.19997. The list of documents relied on by the bank as well as the list of witnesses along with the Investigation Report dated 1.5.1997 were sent to the petitioner. He was also permitted to inspect the documents at the branch along with his defense representative.

4. At the enquiry on 8.11.1997, the petitioner did not appear. Instead the branch Secretary appeared and requested for an adjournment as the petitioner could not appoint his defense representative. The Enquiry Officer decided to adjourn the matter till 12 noon on that day to enable the petitioner to bring his defense representative. When the petitioner did not appear thereafter and also sent no message requesting for an adjournment, he was set ex parte and the enquiry was proceeded with on that day and the next day. A copy of the enquiry proceedings of 8.11.1997 and 9.11.1997 was sent to the petitioner and the enquiry was fixed for 12.2.1998. On 10.2.1998 the petitioner requested for a postponement of the enquiry since his defense assistant was unable to attend. The Enquiry was then adjourned to 5.6.1998 and the petitioner was informed of the adjourned date by a letter dated 6.5.1998. When on 5.6.1998 petitioner again remained absent, the enquiry was concluded ex parte. A copy of the written submissions made by the presenting officer was sent to the petitioner by a letter dated 27.6.1998. He was again reminded by a letter dated 27.8.1998 to submit his written brief, which he did not.

5. In his Report dated 16.9.1998, the Enquiry Officer gave the following findings:

(a) The petitioner had fraudulently utilised the blank withdrawal slip signed by Shri Paras, got it filled for Rs. 18,000/- and withdrawn the money, thus misutilising the trust deposed in him.

(b) The account holders had since received the full payment but refused to give the said statement in writing. The Enquiry Officer concluded: they were pressurised not to give in writing this fact.

(c) Although the petitioner may have repaid the amount after the fraud came to light, that would not dilute the gravity of the charge.

The Enquiry Officer accordingly concluded that the charge framed under para 17.5(d) (willful damage or an attempt to cause damage to the property of bank or any of its customers) and para 17.5(j) (doing any act prejudicial to the interests of the bank) of the Bipartite Settlement, were fully proved.

6. On 17.9.1998 the Disciplinary Authority sent a show cause notice to the petitioner enclosing a copy of the enquiry report and proposing the punishment of dismissal from service. The petitioner was asked to show cause within 7 days and he was informed that there would be a personal hearing before the Disciplinary Authority on 28.9.1998.

7. The petitioner did not reply to the show cause notice but appeared for the personal hearing on 28.9.1998 along with his defense representative. At this hearing, the defense representative offered an explanation that the amount of Rs. 18,000 was withdrawn at the request of Shri Paras and that the petitioner had gone over to the office of the account holders and handed over the money to the other joint account holder Shri Dwarika. According to the petitioner, when Shri Paras visited the branch on the next day, he was not aware of this and was therefore shocked to learn that the amount had been withdrawn. In those circumstances, the complaint was made against the petitioner. However, when later Shri Dwarika informed Shri Paras that the money had already been received, they withdrew the complaint.

8. The Disciplinary Authority did not accept this version of petitioner and recorded as follows:

That on perusal of the Enquiry proceedings and enquiry findings I find that Mr. Paras gave the complaint to the bank after ascertaining from Mr. Dwarika, the other partner of the firm that you did not hand over the cash fraudulently by you from their account to Mr. Dwarika. Mr. Dwarika had also signed in the complaint letter given to the bank and same was marked ME-11 in the Enquiry.

The Disciplinary Authority also noted that the account holders refused to give in writing a statement to the effect that they had received the full payment from the petitioner. Thereafter, the Disciplinary Authority noted that since there was no claim against the bank by the account holders, the penalty of dismissal was disproportionate and therefore decided that the petitioner be awarded the penalty of discharge.

9. It is the petitioner's case that he had on 9.11.1998 written to the Deputy General Manager to give a personal hearing. On 2.4.1999, the joint account holders wrote to the Chairman of the Bank stating that the complaint against the petitioner was made due to some misunderstanding. The petitioner on 26.9.1999 also wrote to the Bank for a reconsideration of his case but there was no response.

10. Learned Counsel for the petitioner submits that since the complainants, upon receiving the money in full, had themselves had written to the bank withdrawing their complaint, no prejudice had been caused to the interests of the bank or of the customer. Accordingly the petitioner could not be held guilty of the charges. He further submitted that the petitioner was denied an adequate opportunity of defending himself in the Enquiry. Lastly, he submitted since there was no monetary loss to the bank or to the customer, the punishment of discharge was disproportionate.

11. Learned Counsel for the Respondent No. 1 bank on the other hand submitted that merely because money was returned by the petitioner after the fraud was discovered, the petitioner could not escape the charge of misconduct. The records further showed that sufficient opportunities had been given to the petitioner to defend himself but he failed to avail of those opportunities. Finally he submitted that considering that the petitioner was working in a bank and was required to respect the trust and confidence reposed in him, the penalty of discharge from the services for breach of that trust cannot be said to be disproportionate.

12. The report of the Enquiry Officer in the present case is a detailed one. The Enquiry Officer has carefully scrutinised the available evidence and come to the conclusion that the charge against the petitioner that he misappropriated the funds stands proved. The Enquiry Officer rightly concluded that the repayment of the money subsequently by the petitioner to the complainants cannot dilute the gravity of the charge. It cannot be denied that customers of a bank repose trust and confidence in the bank staff and believe that their money is in safe hands and will not be misappropriated. Any breach of this trust requires to be dealt with seriously. The mere fact that the amount misappropriated is made good subsequently cannot exonerate the person who misappropriated the money of the charge of misconduct.

13. This Court is also satisfied that sufficient opportunities were indeed given to the petitioner to defend himself in the Enquiry and he failed to avail of those opportunities. Therefore, there is no merit in the submission that the petitioner he was denied a reasonable opportunity of defending himself in the enquiry.

14. The only aspect of the matter which remains to be considered is whether the petitioner's representation after the imposition of the penalty by the Disciplinary Authority have been considered by the Appellate Authority of the Respondent bank. In reply to para 15 of the writ petition where the petitioner has stated that he gave representation on 26.4.1999 that his case may be reconsidered, the Respondent No. 1 bank in its reply has stated as under:

With reference to the contents of para 15 of the petition, it is submitted that the petitioner has not preferred any appeal to the Appellate Authority challenging his dismissal and the time to file an appeal also expired long back. Hence, no question arose for reconsidering the case of the petitioner.

15. This Court feels that the bank ought not to have taken a technical view that the time for filing appeal has expired and that accordingly there was no occasion to reconsider the case of the petitioner. The letter dated 26.4.1999 sent by the petitioner, the receipt of which is not denied, could be treated as the appeal and disposed of as such. It also appears that after the order of Disciplinary Authority discharging the petitioner from services was passed, the two account holders on 15.12.1999 gave affidavits stating that they did not want any action taken against the petitioner. The Respondent No. 1 bank does not deny that these affidavits were received but the stand taken is that these affidavits cannot absolve the misconduct of the petitioner and therefore deserve to be ignored.

16. While the stand taken by the bank that these affidavits cannot absolve the misconduct of the petitioner may be justified, these affidavits are certainly relevant for the question of quantum of punishment. Every misconduct does not warrant the same punishment. However, what should be the proper punishment will depend on several factors and it is only in that context that the affidavits given by the two complainants become relevant.

17. Therefore, the limited relief that can be granted to the petitioner in this case is that the Appellate Authority should be directed to treat the letter dated 26.4.1999 written by the petitioner (Annexure P-7) as an appeal and consider the same along with affidavits dated 15.12.1999 of the two complainants (Annexure P-8 collectively). The Appellate Authority will also give the petitioner a personal hearing on the question of quantum of punishment.

18. For this limited purpose, the Appellate Authority will issue a notice to the petitioner, and in addition through his counsel, fixing a date for the personal hearing of the petitioner. This date shall not be later than four weeks from today and in any event not later than November 3, 2006. The decision on the appeal will be given by the Appellate Authority by a speaking order within four weeks from the said date and in any event not later than December 5, 2006. The said decision will be communicated to the petitioner directly as well as through counsel.

19. With the directions in paras 17 and 18, the writ petition is disposed of with no order as to costs.