Satya Nath Das vs The State Bank Of India And 5 Ors
2022 Latest Caselaw 1688 Gua

                                                               Page No.# 1/16

GAHC010262652017




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/7723/2017

         SATYA NATH DAS
         S/O LT. RATNESWAR DAS R/O HOUSE NO. 96 PUB JYOTINAGAR, P.O.
         BAMUNIMAIDAM, P.S. CHANDMARI DIST. KAMRUP M, GUWAHATI -21,
         ASSAM



         VERSUS

         THE STATE BANK OF INDIA and 5 ORS
         REP. BY ITS CHIEF GENERAL MANAGER, LOCAL HEAD OFFICE, DISPUR,
         GUWAHATI -06.

         2:ASSISTANT GENERAL MANAGER

          STATE BANK OF INDIA
          REGION-V
          ADMINISTRATIVE OFFICE
          G.S. ROAD
          BHANGAGARH
          GUWAHATI - 781005
          ASSAM
          POST BAG NO. 126

         3:THE DEPUTY GENERAL MANAGER

          B and O
          ADMINISTRATIVE UNIT
          G.S. ROAD
          BHANGAGARH
          P.O. DISPUR
          GUWAHATI - 781005
          ASSAM
          POST BAG NO. 126.
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            4:THE GENERL MANAGER

             NETWORK-II
             STATE BANK OF INDIA LOCAL HEAD OFFICE
             NORTH EASTER CIRCLE
             G.S.ROAD
             P.O. ASSAM
             SACHIVALAYA
             DISPUR
             GUWAHATI - 781006
             POST BAG NO. 103.

            5:THE DEPUTY GENERAL MANAGER

             STATE BANK OF INDIA
             OPERATION AND CREDIT
             NW-I
             LOCAL HEAD OFFICE
             NORTH EASTERN CIRCLE
             G.S. ROAD
             P.O. ASSAM SACHIVALAYA DISPUR
             GUWAAHTI -06
             ASSAM

            6:THE BRANCH MANAGER

             STATE BANK OF INDIA
             SARBHOG
             DIST. BARPETA
             ASSA

Advocate for the Petitioner   : MR.S DUTTA

Advocate for the Respondent : MR. N BARUA,R
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                                 BEFORE
                 HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                    ORDER

Date : 19.05.2022

Heard Mr. D. Das, learned counsel for the petitioner. Also heard Mr. N. Baruah, learned counsel for the respondents.

2. At the relevant point of time on 19.08.2011, while the petitioner was serving as an Accountant in the State Bank of India, Bilasipara Branch, the Deputy General Manager, SBI (respondent no.5), had placed the petitioner under suspension on allegations of committing certain gross irregularities by making various unauthorized transactions in the customers' account while serving the bank as a Branch Manager, State Bank of India, Kamargaon Branch, Sorbhog, District Barpeta. In course of time, disciplinary proceedings was initiated against the petitioner by furnishing a memorandum dated 10.12.2012 along with Articles of charges, statement of imputation of lapses during the period from 11.11.2009 to 21.05.2011, list of documents and list of witnesses. The petitioner had submitted his written statement of defence on 15.01.2013, denying the charges and stating that all the transactions were bona fide banking transaction and were done with genuine underlying commercial transaction and were thus, regular. Thereafter, the disciplinary authority, by a letter dated 01.03.2013, furnished to the petitioner an amended charge sheet accompanied with Articles of charges, statement of imputation of lapses, list of documents and list of witnesses.

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3. From the materials available on record, it appears that against the amended charge sheet, no written statement was filed. In course of the proceedings dated 15.03.2013, the petitioner had introduced this defence representative, who had made a request to see the original documents was on 20.03.2013. An Enquiry proceeding was held on 15.03.2013, 21.03.2013, 27.05.2013 and 28.05.2013, and thereafter, an enquiry report dated 05.06.2013 was submitted by the Enquiry Officer. The disciplinary authority, by forwarding the letter dated 29.06.2013, furnish the enquiry report-cum-findings and disciplinary authority's comments to the petitioner. Thereafter, vide letter dated 03.09.2013, the appointing authority had given an opportunity to the petitioner for a personal hearing scheduled on 11.09.2013. Thereafter on 19.11.2013, the appointing authority had ordered imposition of penalty of dismissal in terms of Rule 67(j) of State Bank of India Officers Service Rule and also ordered forfeiture of his gratuity fully in terms of Rule 4(6) (a) of Payment of Gratuity Act, 1972 due to loss caused to the bank to the extent of Rs.9,66,755/- by such act of willful omission of the petitioner and the period of suspension of the petitioner was ordered to be treated as not on duty.

4. Aggrieved by the order of dismissal passed by the appointing authority, on 10.02.2014, the petitioner had preferred an appeal before the Appellate authority.

5. Upon consideration of the materials on record, the Appellate Authority had rejected the appeal of the petitioner without interfering with the order of the appointing authority by which the penalty of dismissal from service in terms of Rule 67(j) and forfeiture of his gratuity was ordered.

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6. Challenging the orders of the appointing authority as well as the appellate authority, the present writ petition has been filed under Article 226 of the Constitution of India.

7. The learned counsel for the petitioner has referred to all the 12 Articles of charges, and was submitted that the criminal proceeding, which was initiated against the petitioner, being Sorbhog PS Case No.242/2011 corresponding to GR Case No.2271/2011 under Section 420, 406, 409 IPC, had resulted in acquittal of the petitioner by giving benefit of doubt vide judgment and order dated 07.03.2017 passed by the learned Chief Judicial Magistrate, Barpeta. Accordingly, it is submitted that as the criminal proceeding as well as the disciplinary proceedings were based on similar charges, on acquittal of the petitioner in the criminal proceedings, the dismissal from service was harsh punishment to the petitioner and thus, the punishment of dismissal from service was disproportionate. Accordingly, it is submitted that the punishment of the petitioner ought to be converted to that of compulsory retirement and the petitioner would be entitled to all service benefits that would be payable on being compulsory retired. It is also submitted that the alleged loss which the bank is stating to have suffered, was only presumptive, as no actual loss of the bank was proved. Accordingly, it is submitted that the forfeiture of gratuity in full was also not sustainable without the quantum of loss suffered by the respondents being proved. In respect of the several allegations contained in articles of charges, it is submitted that no financial loss was caused to the bank. It was also submitted that all the transactions were bona fide transactions. In this connection it was submitted that, the Kamargaon Branch of SBI is situated Page No.# 6/16

in a difficult location and in a village area and with an intention to maintain a healthy relation with bank's customers, the petitioner used to give personal loans to the borrowers from time to time and when the bank formally sanctioned loans from the various borrowers, the advances given by the petitioner was returned. Therefore, it was submitted that in the absence of any written complaint by any persons and without any evidence being adduced by any of the effected borrowers. The enquiry report as well as the order passed by the appointing authority were without any cogent evidence and therefore this was a case of there being no evidence at all against the petitioner.

8. It was also submitted that the evidence tendered by the petitioner were totally discarded. It was also submitted that the petitioner did not get any reasonable opportunity to cross-examine the witnesses and to examine defence witnesses and therefore, there was irregularity in the conduct of the disciplinary proceedings.

9. Per-contra, the learned counsel for the respondents has submitted that the petitioner was occupying a position of trust as a Branch Manager of the concerned rural Branch and that in all the cases where loans were sanctioned during his tenure, the petitioner was transferring money, being part of loan amount either to the bank account of his wife or his daughter. It was submitted that the petitioner had received an all opportunity of defending himself and even at the last stage, an opportunity of personal hearing was granted by the appointing authority by letter dated 03.09.2013. It has further been submitted that in the appeal filed by the petitioner before the appellate authority, no grievance has been raised against the full forfeiture of the gratuity amount.

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Hence, it was submitted that on a point taken-up for the first time, the order of punishment ought not to be interfered with, after as the appellate authority had confirmed the punishment as awarded by the appointing authority. It was submitted that this Court, in exercise of jurisdiction an Article 226 of the Constitution of India, ought not to interfere with the punishment awarded by the appointing authority, as confirmed by the appellate authority in absence of any appeal by the petitioner in the first opportune moment. It was also submitted that against all the 12 Articles of charges, the Enquiry Officer had meticulously referred to the nature of allegations, and the materials appearing against the petitioner. Thereafter, taking note of this stand of the petitioner, the reasons were assigned by the Enquiry Officer to give an opinion to the effect that all the 12 Articles of charges framed against the petitioner were true.

10. In so far as the proceeding before the disciplinary authorities is concerned, it is seen from the minutes of the hearing of disciplinary proceeding held on 27.05.2013, that after the prosecution-in-chief of the prosecution witness was over, the petitioner was given an opportunity to cross examine the witnesses and the sole witness examined by the prosecution was cross- examined. In this regard it is further seen that in the appeal preferred by the petitioner, the order of the appointing authority has not been assailed on the ground that opportunity to examine the documents and opportunity to cross- examine the prosecution witnesses was not corrected. It is also observed that no other procedure lapses which might vitiate the proceedings before the Enquiry Officer or the appointing authority has been urged.

11. The Court is conscious of the fact that while dealing in disciplinary Page No.# 8/16

proceeding, the Court in exercise of power under Article 226 of the Constitution of India is not required to intricately examine the evidence on record like an appellate authority. Nonetheless, as the Article of charges against the petitioner, which are 12(Twelve) in numbers, all are related to the allegations as to failure of the petitioner to discharge duties with utmost integrity, honesty, devotion and diligence were alleged in which references were made to various transactions in customers' account to show that the same has resulted in loss of trust of the management of the bank with the petitioner.

12. In Article of charges no. 1, it was alleged that the petitioner, by using his own user ID No. 1943634 had allegedly credited certain amount of money in the savings bank account no.30655575573 in the name of Nagen Goswami maintained at Guwahati Branch, sitting at Kamargaon Branch, and that he had also raised debit entries in this account on numerous occasions without any mandate from the said customer and the nature of alleged irregular/ illegal transactions done in those accounts. In the defence statement given by the petitioner, he had admitted that the transactions were done in the bank's core banking system and that the petitioner was helpful to the people of the area by always helping them to avail their funds at Guwahati. Therefore, the credit made to the bank account of his wife and/or daughter maintained at Guwahati was thus, sought to be justified by the petitioner. In respect of the other 11 allegations, without going into intrinsic details, it would suffice to mention that out of these allegations, 7(seven) allegations relate to misappropriation of funds of the customers' account and debit of certain funds to the accounts of either his wife or his daughter. Moreover, in case of various loans granted to various customers, part of the loans sanctioned amount was credited to the savings Page No.# 9/16

bank account of the daughter of the petitioner, bearing bank account no.30128078731 and by and large, the defence of the petitioner was that the said customers were in need of money and had taken loan from the petitioner, which was repaid by the borrowers and therefore, there were no complaints by any of the account holders. With regard to all these 12 allegations that are contained in Articles of charges, the Enquiry Officer was of the opinion that the defence by the petitioner was not acceptable and was an effort of the petitioner to cover up. In this connection, the submission of the learned counsel for the petitioner is that the transactions were made at the behest of the borrowers and therefore, there were no complaints and in the absence of any complaints and because of non-examination of any of the bank customers, no case of misappropriation was made out.

13. In this regard, in respect of the findings by the Enquiry Officer, it is seen from the written submission made in the statement of defence, submitted in connection with the enquiry-cum-findings report, which was submitted by the petitioner on 26.07.2013, the petitioner is found to have accepted the credit of certain sum of money from time to time into the account of his daughter. Therefore, it is apparent that into the customers' account, the entire loan money was not credited to their account but a small portion of money out of the sanctioned loan, was credited to the account of his family members.

14. In respect of allegation no.2, it is seen that the petitioner had taken a defence stand that he had deposited Rs.75,000/- (Rupees Seventy five thousand only) in the account of customer of the bank with a view to not jeopardize the image of the bank and himself and that he had voluntarily paid money from his Page No.# 10/16

own account and accordingly, it was submitted that the bank did not suffer any loss. The Enquiry Officer had rejected the said defence on the ground that the petitioner had not siphoned of the money. In respect of such stand, the Enquiry Officer had held that the defence argument that the petitioner had made good the loss to safeguard the image of the bank, does not carry any weightage as, why would the petitioner make loss if he himself has not misappropriate the account. Accordingly, based on the evidence by the Presenting Officer i.e. P.Ex. 19 to 23, it was held that the misappropriation of the amount was true. Each and every details of the 12 Articles of charges are not reiterated herein because all the charges are by and large similar, save and except the amount and the customer name.

15. Accordingly, the appointing authority, by relying on the enquiry report- cum-findings and along with the opinion of the disciplinary authority on the enquiry report, held at the petitioner's personal hearing on 11.09.2013, had not brought out any new material evidence except what has already been recorded during the course of enquiry, and therefore, the said authority agreed with the penalty proposed by the disciplinary authority and punishment of dismissal of service was imposed with order of forfeiture of gratuity due to loss caused to the bank.

16. The appellate authority had re-visited the allegations against the petitioner and formed an opinion that the petitioner did not have any new ground in favor of his appeal and concurred with the finding on the charges against the petitioner of having grossly violated the systems and procedure while transacting in the customers' account and also utilized his own account as Page No.# 11/16

well as accounts of his close relatives to misappropriate the customers' money and accordingly, punishment imposed on the petitioner was upheld.

17. From the nature of defence taken by the petitioner, there can be no two opinion that some part of money out of the customers' account were credited to the account of the wife and daughter of the petitioner. The defence of the petitioner is that the amount was credited to his close family members at the request of the customers, amounts to an admission. Hence, the onus of proof for the same would shift on the petitioner. The petitioner has not been able to demonstrate from the relevant service rules or regulations that it was permissible for the Officer of the Bank to give private loans to various customers and then to appropriate his alleged loan by making debit entries in the account of the bank's customers and to credit the account of his close relatives. There is no dispute that as a Branch Manager of the concerned Branch, he had held a position of trust and in view of the nature of post held by the petitioner, honesty and integrity are inbuilt requirements. It is not the case of the petitioner that because of the backward area where the Branch was situated, he had the permission of the bank authorities to deal with customer account by giving them personal loan and to have it recovered from the loan money that was to be transferred to their accounts. Even assuming that the transaction of the petitioner was bona fide, but there is no material on record by which the petitioner can justify transfer of a part of the loan money to the bank account of his close family members like wife and daughter. It is not the case of a solitary customer, but the petitioner was slapped with 12(twelve) articles of charges of similar nature.

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18. It is too well settled that it is in the realm of the disciplinary authority to consider what would be the nature of punishment to be imposed on a delinquent officer, based upon the misconduct. In this case, as there is an admission by the petitioner of having used his user ID to make debit and credit entries and the account of the customer of the bank as well as the account of his close family members, the Court is unable to hold that the punishment meted out to the petitioner was shockingly disproportionate. Therefore, the proportionality of the punishment imposed on the petitioner cannot be gone into by the Court. This is not a case where the decision in imposing the penalty of dismissal from service was tainted with any mala fide or there has been breach of principles of natural justice.

19. In respect of the submissions of the learned counsel for the petitioner on the impact of the outcome of criminal trial which has resulted in his acquittal, vis a vis. the outcome of the disciplinary proceeding, the Court is of the considered opinion that the proceedings in a criminal case and departmental proceeding operate in distinct and different jurisdictional areas. While in disciplinary proceeding, the disciplinary authority is concerned that the charge related to misconduct of the delinquent officer and as the petitioner was then acting as a Branch Manager, the Disciplinary Authority and the appointing and appellate authority would be more concerned with the enforcement of discipline and the level of integrity displayed by the petitioner. The standard of proof would be totally different in a criminal case where the charges are required to be proved beyond all reasonable doubt while in the departmental proceeding, the standard of proof is one of preponderance of probabilities. Therefore, despite acquittal of the petitioner by the Criminal Court, in the considered Page No.# 13/16

opinion of the Court, it would have no impact on the departmental proceeding or the punishment awarded to the petitioner. Acquittal in a criminal case is not determinative of the commission of misconduct or otherwise and it is open to the authorities to proceed with the disciplinary proceeding, notwithstanding acquittal in a criminal case. Therefore, the Court is unable to agree to the contention of the learned counsel for the petitioner that since that petitioner was acquitted in the criminal proceeding, the impugned orders of dismissal of service deserves to be set aside. In a bank, an officer is required to deal with public money and/or is engaged in financial transaction in the customer account, the highest degree of integrity and trustworthiness is unexceptionable. Therefore, interference with the punishment of dismissal of service is not liable to be interfered with.

20. However, the further point raised by the learned counsel for the petitioner is regarding of the gratuity of the petitioner. In this regard the Court is inclined to refer to the provisions of Section 4(6) (a) of the Payment of Gratuity Act, 1972, which was invoke to withheld the forfeiture of gratuity enable to the petitioner:

"(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused."

From the aforesaid provision it is seen that the pre-requisite forfeiture of gratuity are :- (i) there should have been a damage or loss to or distruction of, property belonging to the employer; (ii) the forfeiture should be to the extent of the damage or loss so caused.

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21. In this regard in the articles of charges, at Sl. No.4 of the initial memo of charges furnished to the petitioner on 10.12.2012, the charges read as follows:

By indulging yourself in such activities, the bank is exposed to its customers and is likely to suffer pecuniary loss of Rs.9,66,755/-. The amount of likely loss may go high further is new instances of aforesaid nature of transactions are brought to the notice of the bank by its customers or staff members or public at large.

22. The disciplinary authority on 01.03.2013, had furnished an amended charge sheet to the petitioner. In the statement of imputation of lapses, no statement has been made with regard to the likelihood of the respondent bank of suffering pecuniary losses to the extent of Rs.9,66,755/- ( Rupees Nine lakh sixty six thousand seven hundred fifty five only). On examination of the evidence let by the prosecution witness, the learned counsel for the respondents has not been able to demonstrate that the respondent bank authorities had given any evidence of pecuniary loss suffered to the extent Rs.9,66,755/- (Rupees Nine lakh sixty six thousand seven hundred fifty five only).Therefore, the Court is inclined to accept the submissions made by learned counsel for the petitioner that the allegations of loss was merely presumptive and actual loan suffered by the respondent bank has not been proved. In (i) the enquiry report,

(ii) the order passed by the disciplinary authority, and (iii) order passed by the appellate authority, no mention has been made as to how the bank had suffered pecuniary loss to the extent of Rs.9,66,755/- (Rupees Nine lakh sixty six thousand seven hundred fifty five only). Moreover, in the enquiry report dated 05.06.2013, how and to what extent any loss was suffered by the bank has not Page No.# 15/16

been mentioned. Moreover, the enquiry report has confined itself to the Article of charges nos. I to XII framed against the petitioner.

23. Therefore, the forfeiture of the entire gratuity in full appears to be contrary to the provisions of Section 4(6) (a) of the Payment of Gratuity Act, 1972. Hence, the impugned order dated 19.11.2013, passed by the appointing authority and the impugned order dated 11.04.2014 passed by the appellate authority are both interfered with and set aside in so far as it relates to the order of forfeiture of gratuity in full in terms of Section 4 (6) (a) of the said Act. However, the remaining part of the impugned order by virtue of which punishment of dismissal of service is made against the petitioner is not interfered with.

24. Resultantly, the Court is inclined to direct the appellate authority i.e. Chief General Manager to re-visit the order of forfeiture of gratuity in full, as the said part of the order has been set aside. The Court is inclined to relegate the petitioner to approach the appellate authority i.e. Chief General Manager, State Bank of India, Local Head Office, who upon receipt of representation of the petitioner along with a certified copy of this order, shall re-visit the punishment of forfeiture of gratuity, by taking into account the provisions of Section 4(6) (a) of the Payment of Gratuity Act, 1972 and shall pass a reasoned order afresh.

25. The writ petition stands partly allowed to the extent as indicated above.

26. The said authority shall dispose of the said representation within a period Page No.# 16/16

of 6(six) weeks from the date of receipt of the representation and certified copy of the order.

27. The parties are left to bear their own cost.

JUDGE

Comparing Assistant