WP(C) 1106/2006 BEFORE THE HON’BLE MR JUSTICE IA ANSARI Heard Mr. M. K. Choudhury, learned Senior counsel for the petitioner. None has a ppeared on behalf of the respondents. 2. The petitioner, while working as clerk-cum-cashier at UCO Bank, Mukalmua Branch, a disciplinary proceeding was drawn against him and he was served with a charge-sheet, dated 14.01.2004, which read as under: That on 22.03.1994 and 29.03.1995, you had given payments of two withdrawal sli ps in the a/c of Mr. Azir Ali, S/B A/C No.284/3 for Rs.9070/ and Rs.20,000/- res pectively without adhering to the bank’s laid down guidelines. (a) You had not scrutinized to see that the debit instruments (withdrawal sl ips of Rs.9070/- and Rs.20,000/- dated 22.03.1994 and 29.03.1995 of Azir Ali SB 284/3 had not been passed for payments by an officer as per authority vested in him by the Manager. The instruments were passed for payment by Shri Motiur Rahma n, Clerk, without any office order. Since the party has complained against their fraudulent payments and claimed payments through the ombudsman and the bank had to make good the loss, as a result of your negligence, you are held responsible for this. (b) You had made both the payments without taking the signature of the Chief Cas hier in token of his agreeing to the payments and also without taking the initia l of the clerk on the reverse as per bank’s norms. You had not taken the signatu re of the receiver of the payments on the reverse of withdrawal slip dated 22.3. 94 of Rs.9070/- and withdrawal slip dated 29.3.95 for Rs.20,000/- to ascertain t hat the token holders and the receiver of payments of the said withdrawal slips are the same persons. Since both the withdrawal slips had only one signature on the reverse you had not ensured that the payments had been made to genuine perso ns. You had also not recorded the details of currency notes and coins (denominat ions) paid at the back of the withdrawal slips, which is required as per bank’s procedure. The above allegation constitutes gross misconduct on y your par t as under: (a) Doing any act prejudicial to the interest of the Bank or gross negligence or negligence involving or likely to involve the bank in serious loss - a gross mi sconduct as per clause 19.5 (i) of Bi-partite Settlement 19.10.1996, as amended. 3. As the petitioner denied that he had committed ’gross misconduct’ as all eged against him, an enquiry was held. The enquiry officer found the petitioner not guilty of the first charge, namely, charge No. 1(a), but found the petitione r guilty of the second charge, i.e., charge No.1(b). The findings were accepted by the disciplinary authority; whereupon penalty of dismissal from service was i mposed on the petitioner by order, dated 14.10.2005, passed by the respondent No .2. Aggrieved by the findings of ’gross misconduct’, reached against him, and al so the penalty imposed by the order, dated 14.01.2005, aforementioned the petiti oner preferred an appeal. As the appeal has been rejected by an order, dated 18. 01.2006, by the respondent No.3, the petitioner has impugned the finding of guil t, reached against him, on charge No. 1(b) and also the penalty of dismissal fro m service, imposed on him, by filing this writ petition, under Article 226 of th e Constitution of India, seeking issuance of appropriate writ(s) setting aside a nd quashing the orders, dated 14.01.2005 and 18.01.2006, aforementioned. 4. It has been submitted, on behalf of the petitioner, that since the petit ioner had been found not guilty of the charge No.1(a), he could not have been fo und guilty of the charge No.1(b) inasmuch as, according to what is contended on behalf of the petitioner, the two charges are inseverably linked with each other and when the first charge could not be proved, the question of finding the peti tioner guilty of the second charge could not have arisen at all. 5. While considering the question as to whether the second charge, framed a gainst the petitioner, stood proved or not, it may be noted that a careful readi ng of charge No.1(b) shows that this charge consists of several ingredients, nam ely, payments were made by the petitioner, in respect of two withdrawal slips, i nto the account of one Azir Ali, for Rs.9070/- and Rs.20,000/-, though the withd rawal of money was from the account of Badar Ali meaning thereby that the petiti oner helped Azir Ali in withdrawing money from Badar Ali’s account and putting t he money in his (Azir Ali’s) account. Moreover, before making the payment, the petitioner was required, as per the Bank’s norms, to obtain initial of the Chief Cashier, on the reverse page of the withdrawal slips permitting such withdrawal . Thus, without such signature having been obtained, as indicated hereinbefore, no authority to make payment to the token holder could have been validly derived by the petitioner. Despite the fact that such an authority had not been obtain ed in the sense that the petitioner had not obtained signatures of the Chief Cas hier on the reverse page of the withdrawal slips, the payments were made by the petitioner into the account of Azir Ali. Thus, the petitioner did not have requ isite authority from a competent person to make payment. Further-more, the peti tioner had not also recorded the details of the currency notes and/or coins (den ominations) on the reverse page of the withdrawal slips, which was, otherwise, r equired as per bank’s procedure. This apart, the petitioner had also not taken, on the reverse page of the withdrawal slips, signatures of the receiver of the payments so as to ascertain if the token holders and the receiver of the payment s of the said two withdrawal slips were one and the same person. The fact that t he petitioner had not done the needful for the purpose of enabling him to make p ayment of the money, covered by the said two withdrawal slips, had stood well es tablished by the materials brought on record. In the face of these admitted an d undisputed facts, it could not have been held that the second charge did not s tand proved. Consequently, merely because of the fact that the first charge was , according to the enquiry officer, not proved and the said finding had been acc epted and upheld by the disciplinary authority, the finding, on the second charg e, cannot be said to be incorrect, illegal or unfounded. The finding, therefore, reached by the Enquiry Officer, on the second charge, and acceptance thereof by the disciplinary authority cannot be faulted with. 6. Coupled with the above, it is also noteworthy that it has been pointed o ut by Mr. Choudhury, learned Senior counsel, that in accordance with the enforce able agreement between the disciplinary authority and the employees, the miscond uct, if any, committed by the petitioner, was a ’minor misconduct’ and not a ’gr oss misconduct’ inasmuch as, according to Mr. Choudhury, the petitioner’s miscon duct, if any, was as regards breach of rule of business of the bank or instructi on in the running of any department of the bank and/or neglect of work or neglig ence in performing duties and such acts or omissions were, under the said agreem ent, ’minor misconduct’. In the case at hand, no case of gross misconduct, reite rates Mr. Choudhury, was made out against the petitioner inasmuch as a disciplin ary authority, in order to hold that a person has committed gross misconduct, mu st arrive, in the light of the agreement aforementioned, at the conclusion that his act was an act prejudicial to the interest of the bank or, that his acts con stituted ’gross negligence’ or negligence involving or likely to have involved t he bank in serious loss, but the acts or omissions of the present petitioner can not be said to be prejudicial to the interest of the bank nor can his acts or o missions constitute gross negligence or negligence involving or likely to involv e the bank in serious loss. 7. In the present case, if the acts, committed by the petitioner, are borne in mind, it is clearly revealed that the petitioner had not obtained requisite authority enabling him to make payment of the sums, covered by the two withdrawa l slips, to a person from whose account the withdrawal of money had not taken pl ace. The respondent bank is accountable to Badar Ali, i.e., the person from who se account the money was withdrawn, and the bank had to, eventually, make good t he loss. In such circumstances, it cannot be said that the act of the petitione r was not prejudicial to the interest of the bank. Even if, for a moment, it is assumed that the petitioner had no ill motive, his acts clearly show that he di d not take at all such care as he ought to have taken to ensure that the paymen t is withdrawn from appropriate account and payment is made to appropriate accou nt holder or person. Thus, even if the petitioner’s acts were not intentional, there can be no escape from the conclusion that his acts were acts of utter negl igence involving the respondent bank in serious loss. In short, thus, the fact that the petitioner had committed ’gross misconduct’ cannot be doubted. The char ge No.1(b), therefore, stood well proved. 8. Coming, now, to the penalty imposed on the petitioner, it may be pointed out that it has been submitted, on behalf of the petitioner, that the penalty, of dismissal from service, has been imposed on the petitioner by taking into acc ount his ’past conduct’, whereas, according to Mr. Choudhury, learned Senior cou nsel, the past records of the petitioner could not have been considered against him for the purpose of deciding penalty without giving any opportunity to the pe titioner as regards his ’past conduct’. 9. For the purpose of appreciating the above submissions, made on behalf of the petitioner, the relevant part of the order, dated 14.10.2005, whereunder pe nalty has been imposed, is reproduced below: Now, in exercise of the powers conferred upon me by the Executive Director of t he Bank and circulated vide circular No.CHO/PAS/2/2000 dated 20.06.2000, and tak ing into account your past track records where you were charge-sheeted for major irregularities committed by you and awarded punishment, I hereby give my decisi on as under: 10. From a bare reading of what have been mentioned in the order, dated 14.1 0.2005, it becomes clear that penalty of dismissal from service has been imposed on the petitioner not merely on the basis of the findings arrived at pursuant t o the charge-sheet, dated 14.10.2004, but also by taking into account his past r ecord. Though the materials on record indicate that the petitioner was given a n otice directing him to show cause as to why he shall not be dismissed from servi ce, the fact remains that the petitioner had never been put to notice that his p ast conduct would also be taken into account for the purpose of deciding the pen alty to be imposed on him. To this extent, therefore, the impugned order, imposi ng penalty, suffers from serious infirmity of law. 11. Considering the fact that this Court is of the view that since the penal ty of dismissal from service has been imposed on the petitioner by taking into a ccount his ’past conduct’, though no notice, in this regard, had been issued to him giving an opportunity to have his say in the matter of his ’past conduct’, t he impugned order, dated 14.10.2005, to the extent that the same imposes penalty , needs interference by this Court. 12. Because of what have been discussed and pointed out above, this writ pet ition partly succeeds. While the finding of guilt, reached against the petitione r by the disciplinary authority, in respect of charge No.1(b), is not interfered with, the impugned order, dated 14.10.2005, is, to the extent that the same rel ates to imposition of penalty of dismissal from service, hereby set aside and qu ashed and the proceeding is remanded to the respondent No.2 for the purpose of g iving requisite notice to the petitioner and, then, to pass appropriate order(s) as may be warranted by the facts of the case and the law relevant thereto. On t he penalty having been set aside, the petitioner shall stand reinstated for the purpose of being placed under suspension enabling the disciplinary authority to complete the process of imposition of such penalty as may be permissible in law. 13. With the above observations and directions, this writ petition shall sta nd disposed of. 14. No order as to costs.