w w w . L a w y e r S e r v i c e s . i n



Sanjay Kumar Saha v/s UCO Bank & Others


Company & Directors' Information:- SANJAY CORPORATION LIMITED [Active] CIN = U16009GJ1999PLC035814

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- SANJAY KUMAR & COMPANY PVT LTD [Strike Off] CIN = U23109WB1990PTC048129

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    WP. No. 438 of 2017

    Decided On, 07 November 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE TAPABRATA CHAKRABORTY

    For the Petitioner: Soumya Majumdar, Dibyendu Chatterjee, Madhuparna Sarkar, Siddhartha Roy, Advocates. For the Respondents: Ashim Routh, S.M. Obeidullah, Sudip Pal Choudhuri, Anindita Auddy, Advocates.



Judgment Text

1. As a prelude to the instant lis it needs to be stated that challenging a statement of allegations and charges contained in a memo dated 28th February, 2006 issued by the respondent no.2, an enquiry report dated 19th February, 2008, orders passed by the disciplinary authority (in short, DA) and the appellate authority (in short, AA) dated 1st September, 2009 and 7th May, 2009 respectively, the petitioner preferred a writ petition being WP 1038 of 2009. The same was disposed of by an order dated 8th March, 2016 observing inter alia that the finding on proof of allegation no.1 was perverse and that the allegation no.3 relates to an error of judgment and does not impute misconduct. On the basis of such observations, the order of the AA dated 7th May, 2009 was set aside directing the AA to revisit its order. Pursuant to such direction, the AA passed an order on 12th May, 2017. The operative part of the said order runs as follows:

"In view of allegation-wise and other observations, the Committee of the Board of Directors for disposal of appeal cases is of the view that allegation Nos. 2 and 4 leveled are held as proved against Shri Saha. Therefore, the Committee decided not to deviate from the final order passed by the Disciplinary Authority on 01.09.2008, except making additional payment of Bank's contribution to Provident Fund with upto date interest thereon, to Shri Sanjay Kumar Saha (EMP No. 38454) which was not paid earlier".

2. Mr. Majumdar, learned senior advocate appearing for the petitioner submits that suspicion, howsoever high, cannot be a substitute of actual proof. The finding of the AA pertaining to the allegation no.4 is not based on any direct evidence and as such the fundament of the decision is erroneous and illegal. The said allegation has been framed on the basis of the first three allegations out of which the allegation no.1 is perverse and the allegation no.3 does not impute any misconduct, as would be explicit from the order dated 8th March, 2016 passed in WP 1038 of 2009. There is no element of proof that the petitioner had acted in collusion with the borrowers to siphon off the bank's fund. In view thereof, the petitioner could not have been penalised on the basis of the 4th allegation.

3. Reiterating the arguments advanced in course of hearing of the earlier writ petition and drawing the attention of this Court to the impugned revisited order 12th May, 2017, he submits that it has been admitted by the AA that there is no direct evidence against the petitioner suggesting that he had helped the borrowers in siphoning off the bank's fund. In the allegation no.4 there is no reference to "adequate precautions". The said allegation had been sought to be established stating that the petitioner could not satisfy "the genuineness of the need of the transaction". The said clause pertains to allegation no.1 which had been found to be perverse in the earlier writ petition.

4. He denies the allegation no.2 as leveled against the petitioner and submits that valid challans were obtained by him towards dispatch of goods which establish that all necessary precautions as per the existing guidelines were taken. It has only been alleged that the petitioner had waived the stipulation of letters of credit without any proof. There is no direct evidence and no finding that such waiver had been negligent or fraudulent. In view thereof, the entire proceeding needs to be quashed. The Writ Court in exercise of its power of judicial review can certainly interfere in a case where the report of the enquiry officer is based on no evidence. In support of such contention reliance has been placed upon the judgments delivered in the case of Syndicate Bank -vs- Vidya G. Naik, reported in 2001 (1) CHN 448 and in the case of Narinder Mohan Arya -vs- United India Insurance Co. Ltd. & Ors., reported in 2006 (4) SCC 713.

5. He argues that the respondents were unable to produce the LC Bill Discounting Register and the burden of such failure on the part of the bank had been sought to be shifted upon the petitioner. Onus is upon the prosecution to prove. In course of cross- examination, Debajyoti Mallick, Assistant Chief Officer of the bank had stated that in Exhibit D-4 (i) and D-4 (ii) nothing has been specifically mentioned as to whether the LCs sanctioned in favour of Mata Motors and Mata Sales Agencies are clean or otherwise and from such answers given in cross-examination it is evident that allegation no.2 is based on no evidence. In view thereof, the respondents had no jurisdiction to impose any penalty on the basis of the said allegation.

6. According to Mr. Majumdar in the allegations there is no imputation as to whether the steps taken by the petitioner were negligent or fraudulent in nature. The contents of the allegations do not constitute any misconduct for imposition of a penalty of compulsory retirement. In support of such contention reliance has been placed upon the judgment delivered in the case of A.L. Kalra - vs- The Project and Equipment Corporation of India Ltd., reported in AIR 1984 SC 1361.

7. He submits that in the written brief of the presenting officer it had been categorically stated that "allegation no.4 is culmination of all three previous allegations i.e. 1 to 3. In consideration of the above points, it is evident that Sri Saha had helped the borrowers to siphon off Bank's fund & improper assessment of requirement of credit limit ultimately leads to conversion of the accounts into non-performing asset (NPA)". The allegation no.1 and allegation no.3 have not been established. In the absence thereof and solely on the basis of allegation no.2 it could not have been held that allegation no.4 and the corresponding charges stand proved.

8. Per contra, Mr. Routh, learned advocate appearing for the respondents submits that all the allegations are attributable to the charges framed and the four allegations are distinct and different. If a single allegation is proved, it may lead to prove one or more than one charge. It had been a concurrent finding of the enquiry officer, the DA and the AA that the petitioner had waived the stipulation of letters of credit about evidence of despatch of goods without obtaining permission from higher authorities and thereafter the petitioner had discounted the letters of credit. The amount stated in allegation no.2 was not realised and the bank was exposed to serious financial risks. As long as there is some evidence on which the DA can rest its findings, sufficiency or insufficiency of such evidence cannot be gone into by a Writ Court. In support of such contention reliance has been placed upon the judgment delivered in the case of Allahabad Bank & Ors. -vs- Krishna Narayan Tewari, reported in 2017 (2) SCC 308.

9. He submits that the scope of judicial review in disciplinary proceeding is very limited and in the absence of any violation of the principles of natural justice or any procedural irregularity, no interference is called for in exercise of discretionary jurisdiction of this Court. It is not a case that the authorities have been influenced by any irrelevant or extraneous consideration. The imputations attributable to the charges have been found to be true and on the basis thereof, punishment has been rightly imposed.

10. Placing reliance upon the judgment delivered in the case of Mihir Kumar Hazra Choudhury -vs- Life Insurance Corpn. & Anr., reported in 2017 (9) SCC 404, he argues that in a case where an employee deals with the money of the depositors and customers, he is required to exercise higher standard of honesty and integrity. Any dereliction in discharge of duties whether by way of negligence or with deliberate intention or with casualness constitutes misconduct on the part of such employee.

11. He argues that decision qua the nature and quantum of punishment is the prerogative of the DA. It is not the function of the Writ Court to decide the same. The Court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. In support of such contention reliance has been placed upon the judgment delivered in the case of Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. & Another -vs- K. Hanumantha Rao & Another, reported in 2016 (8) Supreme 475.

12. Mr. Routh argues that the respondents have acted in strict consonance with the UCO Bank Officer Employees' (Conduct) Regulations, 1976 and UCO Bank Officer Employees' (Discipline and Appeal) Regulations, 1976. The allegation no.2 stands supported with appropriate evidence on record and such allegation is directly attributable to the allegation no.4 and for the misconduct on the part of the petitioner appropriate punishment had been imposed. Such punishment is not disproportionate considering the gravity of the misconduct and in view thereof, no interference is called for. It is not the function of the Writ Court to impose a particular punishment. The contents of the allegations, as established, constitute misconduct and as such no interference is called for.

13. He further submits that there had been no jurisdictional error on the part of the respondents in conducting the disciplinary proceedings. By the impugned order the AA decided not to deviate from the final order passed by the DA on 1st September, 2008 except making additional payment of bank's contribution to provident fund with up to date interest thereon to the petitioner. Prior thereto, in terms of an interim order the petitioner had already been paid an amount of Rs.3,50,000/- towards gratuity and Rs.4,29,366.20/- towards his own contribution to provident fund.

14. In the enquiry report, the Enquiry Officer opined that the charge no.1 is partly proved but the DA in its order dated 1st September, 2009 found all the charges proved. For establishment of the alleged charge no.1, a penalty of compulsory retirement was imposed. For establishment of the alleged charge no. 2, the basic pay of the petitioner was directed to be reduced by six stages in the time scale of pay for a period of two years and it was also directed that the petitioner would not earn increments during the period of such reduction and that on expiry of the reduction period, the same would have the effect of postponing the petitioner's future increments of pay. The same punishment was reiterated and imposed for alleged establishment of charge no.3 and it was stated that all the penalties would have concurrent effect. The said order of DA was upheld by the AA.

15. In the earlier writ petition, the Hon'ble Court had categorically observed that the finding on proof of allegation no.1 was perverse and that the allegation no.3 relates to an error of judgment and does not impute misconduct. The Court further observed that it was unable to segregate the portion of the order of the DA regarding the findings against allegation nos.2, 4 and the charges in relation thereto. In the revisited order of AA also there is no such segregation and in view of the observations of the Court, the AA could not have proceeded on the basis that any allegation contained in the memo dated 28th February, 2006 can be picked up to establish the charges alleged.

16. In the impugned revisited order it was observed that while cross-examining the role of the Regional Office in the sanction process of the accounts of M/s Mata Motors and M/s Mata Sales Agencies it was noticed that CBI investigated in the fraud case and recommended punishments against six officers. The statements, however, do not reveal that there had been any uniform imposition of penalty. It is also not a fact that one Sri S.K. Chakraborty was dismissed.

17. In the instant case it stands admitted that there is no direct evidence that the petitioner had helped the borrowers to siphon off the bank's fund. Faced with such infirmity, the AA in its revisited order observed that even "if a single allegation is proved, it may lead to prove one or more than one charge". A composite reading of the first three allegations cannot lead to a conclusion that the petitioner had been a part of the alleged process towards siphoning of funds. In the absence thereof, it cannot be said that the petitioner had not discharged his duties with utmost integrity, honesty, devotion and diligence.

18. The word 'integrity' is synonymous with probity, purity, uprightness, rectitude and sincerity. In the instant case there is no evidence on record to establish that the petitioner's integrity was questionable. The right to reputation comes within the purview of fundamental right. The petitioner reached the post of Deputy Chief Officer by the dint of his merit and through rendition of sincere service for decades. An employer also has an obligation to protect its employees and it cannot render an officer of the rank of the petitioner so vulnerable that by drawing an imaginary nexus with alleged siphoning of funds he can be ousted from his service through imposition of a penalty of compulsory retirement.

19. There is no dispute as the regards the proposition of law laid down in the judgments cited by the parties. However, the same becomes applicable on the rudiments of the facts involved. Each case presents its own peculiar factual scenario. A decision is an authority for what has been decided and not what can logically be deduced therefrom. The expression 'sufficiency of evidence' postulates existence of some evidence which links the charged officer with the misconduct alleged against him. In the instant case there is no imputation to the effect that the petitioner had illegally collected money or had enjoyed any wrongful gain. Such an allegation is also required to be proved to the hilt as the same brings the civil and criminal consequences upon the concerned employee. Such a charge is quasi criminal in nature and is required to be proved beyond any shadow of doubt and not on mere probabilities. The DA found that the allegation no.1, though partly proved, along with the allegation nos.2, 3 and 4 establish the charge no.1 and accordingly imposed the punishment of compulsory retirement and reduction of basic pay. In the order dated 8th March, 2016 passed in the earlier writ petition the finding on proof of allegation no.1 was found to be perverse and it was also held that the allegation no.3 does not impute misconduct. The said order had attained finality and as such even assuming that the allegation no.2 stands proved against the petitioner, such imputation does not lead to any conclusion that the petitioner had helped the borrowers to siphon off the bank's fund and as such the punishment of compulsory retirement could not have been imposed. It fails the test of reasonableness.

20. The contention of the petitioner that the allegation no.2 is based on no evidence is, however, not acceptable to this Court. The enquiry officer, the DA and the AA had arrived at a finding that the allegation no.2 stands proved. Such concurrent finding cannot be dislodged upon re-appreciation of the evidence on record and as such the penalty of reduction of the basic pay of the petitioner by six stages in the time scale of pay for a period of two years and that the petitioner would not earn increments during the period of such deduction and that on expiry of the reduction period, the reduction would have the effect of postponing his future increments of pay, as imposed upon establishment of charge no.2 is not interfered with. However, no punishment could have been imposed pertaining to the allegation no.3 since in the earlier writ petition it was categorically held that the allegation no.3 does not impute misconduct.

21. For the reasons discussed above, the impugned order of imposition of the penalty of compulsory retirement is set aside and quashed. The respondents are directed to reinstate the petitioner with all continuity of service, upon

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imposition of the penalty of reduction of his basic pay, as directed by the DA in its order dated 1st September, 2008 pertaining to the charge no.2 and start payment of the petitioner's monthly salaries and other allowances month by month, within a period of four weeks from the date of communication of this order. The order dated 12th May, 2017 passed by the AA is, accordingly, modified. The amount already paid towards gratuity and provident fund shall stand adjusted with the petitioner's retirement benefits. 22. There can be no precise formula nor any "cast iron rule" for grant of back wages upon reinstatement. The petitioner lost his job from the date of imposition of the penalty of compulsory retirement and presently, he is on the verge of retirement. There is no allegation that he was gainfully employed during the period in question. The dispute among the parties has continued for a substantial period of time. However, the bank cannot be held responsible for such efflux of time and it is also not a case that the inquiry was held as a camouflage to get rid of the petitioner or to victimize him. 23. In the said conspectus, justice would be subserved through issuance of a direction upon the respondents to disburse 50% of the back wages to the petitioner. Accordingly, the respondents are directed to disburse the said amount within a period of six weeks from the date of communication of this order. 24. With the above observations and directions, the writ petition is disposed of. 25. There shall, however, be no order as to costs. 26. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
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