MEHARNOSH M. MADAN Vs. BANK OF INDIA

JUDGEMENT

(1.) HEARD counsel for the parties. The petitioner is aggrieved by the order dated 12.4.1999 contained at Annexure -23 passed by the Zonal Manager cum Disciplinary Authority i.e. Respondent No. 2 where under substituted findings have been recorded by the Disciplinary Authority in place of findings recorded by the Inquiry Officer in terms of Regulation 7(2) of the Bank of India Officer and Employees (Discipline and Appeal) Regulation, 1976 (hereinafter referred to as the Regulations). The petitioner has been awarded punishment of dismissal from the service of the bank vide order dated 6.8.1999 contained at Annexure -24 passed by the respondent No. 2 under Clause 4(j) of the Regulations. He is also aggrieved by the same. Petitioner's appeal against the order of dismissal from service passed by the Disciplinary Authority was also rejected vide order dated 8.12.1999 contained as Annexure -26 to the writ petition whereby the said order of punishment was also confirmed. The Disciplinary Authority had also directed for recovery of the amount of Rs. 15.62 lakhs which are alleged to be the loss caused to the Bank because of the misconduct and action of the petitioner. The petitioner has also challenged the show -cause notice dated 31.12.1999 (Annexure -28) for effecting the recovery of the amount of loss.

(2.) IT is the case of the petitioner that he joined as clerk cum typist on 12.12.1966 in the respondent -Bank. After undergoing probation he was designated as Clerk Accounts in September, 1971. On 1.12.1972 he was promoted to the Officer Grade and thereafter was transferred from one branch to another. Thereafter, in May, 1988 the petitioner was posted at the overseas branch of Bank of India at Paris, France where he remained till his tenure was completed on December, 1992. Thereafter, petitioner submitted his joining at Lucknow Zonal Office in the month of April, 1993. The petitioner is said to have forwarded his resignation on 10.4.1993 (Annexure -3) to the competent Authority of the Bank for acceptance. It is the contention of the petitioner by referring to the agreement (Annexure -2) entered into with the Bank that the stipulations contained therein provide that on return from foreign posting the employee has to remain with the Bank for 5 years, thereafter. However, if he intends to leave the service of the Bank within the said 5 years he has to pay a compensation of Rs. 1 lakh to the Bank. According to the petitioner correspondences were exchanged with the Bank upon his letter forwarding his resignation and petitioner informed the Bank on 5.5.1993 that there are sufficient deposit in his account for recovery of the amount of Rs. 1 lakh as also salary for 3 months period. It is however stated by the petitioner that thereafter the Bank remained silent for considerable length of time and did not pay the post retirement benefits to the petitioner. Therefore petitioner had occasion to approach the Patna High Court in C.W.J.C. No. 1336 of 1997 (R) for payment of his terminal benefits which was preferred on 28.4.1997. The petitioner contended that only upon filing of the writ petition the memorandum of charges was served upon him vide Annexure -5 dated 11.4.1997 which is alleged to be ante dated. The preliminary show -cause submitted by him was not accepted and inquiry was commenced by appointing an Inquiry Officer on 7.10.1997. The petitioner raised certain grievances relating to non -supply of documents before the Inquiry Officer on 5.3.1998 (Annexure -9) and also repeated it on a number of occasion including on 6.4.1998 (Annexure -10). The petitioner even proposed to send questionnaire to the officers posted at Paris Branch in relation to the allegations made against him for misconduct during his tenure at the foreign branch. However, the same was declined by the Inquiry Officer who advised him to call for any officer who worked at Paris Branch. The petitioner again responded by stating that none of the Officers who were serving in the Bank at the relevant time posted at Paris are available as they have left the services of the Bank. Therefore he cannot adduce their evidences. In these background the Inquiry Officer proceeded with the inquiry and rendered his report on 20.2.1999 (Annexure -20). The Inquiry Officer found the Charge Nos. 1 and 2 not proved against him. However, charge No. 3 relating to his absence from 10.4.1993 was found to be proved.

(3.) LEARNED Sr. Counsel appearing on behalf of the respondent -Bank on the other hand in reply has stated that no mala fide can be attached to the initiation of the departmental proceeding as they are based upon sufficient documents and materials which related to the tenure of the petitioner in service during his foreign posting as also in relation to Charge No. 2 for his posting as Branch Manager, Adityapur Industrial Estate Branch, Jamshedpur. It is submitted on behalf of learned counsel for the respondent -Bank that the resignation of the petitioner was not accepted by the Bank and conveyed to him on 4.6.1993 itself. These findings have also come in the order passed in the writ petition preferred by the petitioner himself by the learned single Judge. It is further submitted that the learned single Judge has also found that the initiation of the Disciplinary proceeding cannot be held to be bad because the resignation of the petitioner was refused by the respondent -Bank. Therefore, it is submitted that no ground for mala fide or lack of jurisdiction can be alleged for initiation of the Disciplinary proceeding. It is also submitted on behalf of the respondent -Bank that so far as the Charge No. 3 is concerned, which related to absence from duty by the petitioner, the same has neither been refuted and on the contrary has been conclusively established on the basis of the materials on record. Admittedly after submission of the resignation letter on 10.4.1993, the petitioner never joined the services of the Bank or discharged his duty under the respondents till the date of his dismissal. Therefore, the petitioner's absence from the duty was grave misconduct and petitioner is liable to be dismissed on that score alone. It is however submitted that so far as the Charge No. 1 is concerned, the action of the petitioner while being posted at Paris Branch under the respondent -Bank were in the nature of serious misconduct which led to pecuniary loss to the Bank to the extent of FFR (French Franc) 2,24,790.97 i.e. approximately Rs. 15.50 lakhs which squarely stands established. It is further stated that Disciplinary Authority has given cogent reason while asking for reply from the petitioner on the reasons for differing with the findings of the Inquiry Officer. Learned counsel for the respondent -Bank submits that the documents which are referred to in the reasons recorded by the Disciplinary Authority while differing with the report of the Inquiry Officer were produced by the petitioner himself i.e. Ext. DX2. The said exhibit DX2 dated 31.7.1989 itself indicate the outstanding entry in the reconciliation statement regarding cheque of 4.5 Lakh FFR deposited by the customer Mr. Pravin Patel which had not been honoured because of lack of insufficient funds. It is stated that even after reconciliation statement recorded on 31.7.1989 the petitioner who was serving as senior officer of the bank at the Paris Branch did not take any corrective step to safeguard the Bank's interest as the customer ultimately withdrew the said amount between 13.9.1989 to 25.10.1989 and thereby caused severe pecuniary loss to the respondent -Bank. The said customer finally committed suicide in July, 1990. Petitioner was found to be lacking in taking diligent steps for recovery of the aforesaid amount from the said customer even though he was alive till July, 1990. It is further submitted that the reasons indicated by the Disciplinary Authority in the memorandum calling for representation dated 8.3.1999 (Annexure -21) so far as the Charge No. 2 is concerned also shows that petitioner had failed to obtain security document before sanctioning over draft in the current account of one customer under the Branch at Adityapur Industrial Estate. Learned counsel for the respondent -Bank, therefore submitted that the reasons indicated by the Disciplinary Authority were cogent supported by materials brought during the course of Inquiry and petitioner failed to submit adequate explanation to the same which led to the substitution of the findings by the Disciplinary Authority vide Annexure -23 dated 12.4.1999. Both the charge Nos. 1 and 2 were found to be established and in violation of Regulation 3(1) and 24 of the Regulations, 1976 which governs the petitioner's services. In these circumstances, once the charges which are serious in nature causing pecuniary loss to the bank is established and the absence from the duty has been proved for considerable length of time, no fault can be found in the order of Disciplinary Authority imposing punishment of dismissal from service as also holding that the petitioner has caused pecuniary loss to the bank. According to the respondent the Appellate Authority has also considered the memorandum of appeal and the ground taken by the petitioner while rejecting the same by the order passed by the General Manager dated 8.12.1999 which is proper in the eye of law. In these circumstances, learned counsel for the respondent submitted that in a case of Bank employee where a relationship of utmost confidence is required to be maintained between the employer and the employee, no interference is required to be made in exercise of writ jurisdiction by this Court. Learned counsel for the respondent has also relied upon judgment of the Hon'ble Supreme Court reported in the case Canara Bank v. V.K. Awasthy, reported in : AIR 2005 SC 2090 as also in the case of Tara Chand Vyas v. Chairman & Disciplinary Authority and others, reported on : 1997(4) SCC 565. Learned counsel for the respondent -Bank has also distinguished the argument of the petitioner that similar placed employee namely N. Venkatachalam have been let off with a simple warning for the same charges. It is submitted that the said employee was only a Trainee at the relevant point of time but the petitioner was Senior Officer posted in the Branch who had no explanation to offer in respect of the negligence and failure to pass reverse vouchers on the said cheque being dishonoured and communicated to the Bank on 30 June, 1986 and also reflected in the reconciliation statement dated 31.7.1989. In such circumstances, learned counsel for the respondent - -Bank submits that the writ petition is devoid of merit and deserves to be dismissed.