WP(C) 3598/2006 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) By means of this writ petition, the petitioner has assailed the Annexure-6 order dated 15.3.2005 passed by his appointing authority dismissing him from service. The petitioner has also challenged the Annexure-8 order dated 30.9.2005, by whi ch the appeal preferred by him against the order of dismissal, has been dismisse d. The impugned order of dismissal from service was passed pursuant to the depar tmental proceeding initiated against the petitioner on the following charges :- ANNEXURE-II STATEMENT OF IMPUTATION OF LAPSES ALLEGED AGAINST SHRI PRASANTA KUMAR GANGULY JM GS-I IN RELATION TO THE ARTICLE OF CHARGE ALLEGED AGAINST HIM (VIDE ANNEXURE-I) WHILE SHRI GANGULY WAS POSTED AT GOSSAIGAON BRANCH Allegation-I It is alleged that while you were working as Passing Officer at Gossaigaon Branc h you have raised a spurious debit in STDR Account of Rs.551100/- on 28.07.2003 against which 12 (twelve) Bank Drafts aggregating Rs.5,50,000/- were issued in f avour of M/S Economic Drug Distributors proprietary firm of your wife Smt Tanima Ganguly drawn on Bongaigaon Branch and Exchange account was credited with Rs.11 00/- with malafide intention. The details of the drafts issued and signed by yo u as under. Sl. Draft Amount Exchange Favouring No. No. of Draft 1. 048456 Rs.49000/- 98.00 Economic Drug Distributors 2. 048457 Rs.49000/- 98.00 - do - 3. 048458 Rs.49000/- 98.00 - do - 4. 048459 Rs.49000/- 98.00 - do - 5. 048460 Rs.49000/- 98.00 - do - 6. 048461 Rs.49000/- 98.00 - do - 7. 048462 Rs.49000/- 98.00 - do - 8. 048463 Rs.49000/- 98.00 - do - 9. 048464 Rs.49000/- 98.00 - do - 10. 048465 Rs.49000/- 98.00 - do - 11. 048466 Rs.49000/- 98.00 - do - 12. 048467 Rs.11000/- 22.00 - do - Allegation-II It is alleged that TDR form bearing No.683850 removed and misused by you for iss uance of above mentioned 12 Nos. of Bank Drafts amounting to Rs.551100/- inclus ive of exchange. Allegation -III It is alleged that while you were officiating as Branch Accountant you h ave sanctioned and disbursed 3(three) Demand Loan for Rs.131000/-, Rs.1,00,227/- and Rs.95,000/- (Total amount Rs.326227/- to one Shri S.N. Agarwala on 20.08.20 03 against non-existent STDRs and issued 9 (nine) drafts aggregating Rs.325543 /- to various Drug wholesellers drawn on our Guwahati Branch and all the Drafts were signed by you. Also you have prepared and passed all the credit vouchers ( drafts) with malafide intentions. The details of drafts issued and signed by yo u as under :- Draft No. Favouring Amount Exchange 048671 LB Enterprise 35635/- 72/- 048672 Solvay Pharma 32090/- 66/- India Ltd. 048673 - do - 30133/- 62/- 048674 Notaries 96748/- 194/- India Ltd. 048675 Hanuman 17106/- 36/- Pharmaceuticals Ltd. 048676 LB Enterprise 26159/- 54/- 048677 Wallace 40042/- 82/- Pharmaceuticals Ltd. 048678 -do- 43493/- 88/- 068449 do- 4137/- 30/- 2. In the departmental proceeding, the petitioner duly participated through his defence counsel and on conclusion of the enquiry, the Enquiry Officer submi tted his report holding that all the aforementioned charges had been proved. Cop y of the enquiry report was forwarded to the petitioner on 30.11.2004 asking him to submit written representation against the same, if any. Be it stated here th at during the pendency of the departmental proceeding, the petitioner was placed under suspension by order dated 30.9.2003. 3. On conclusion of the enquiry proceeding and furnishing of the report the reof, the impugned order of dismissal dated 15.3.2005 having been passed against the petitioner, he preferred a departmental appeal, which was also rejected by the aforesaid Annexure-8 order dated 30.9.2003. 4. I have heard Mr. A.S. Choudhury, learned senior counsel assisted by Mr. I. Hussain, learned counsel for the petitioner as well as Mr. L. Talukdar, learn ed counsel representing the respondent-Bank, who has appeared along with Mr. G. Das, learned counsel. 5. The whole basis of challenge to the impugned orders, as has been project ed in the writ petition is that the petitioner alone was not responsible in resp ect of the transaction, for which he had been made liable. In paragraph 16 of th e writ petition, the petitioner has stated about the details of the procedure to be followed in respect of such transaction. According to the petitioner, such a detailed procedure being involved in the transaction, the allegation made again st the petitioner is not tenable. 6. As regards the procedure adopted in conducting the enquiry proceeding, t he petitioner has not raised any grievance against the same. However, in paragra ph 9 of the writ petition, the petitioner has discussed about the evidence on re cord and in fact, has quoted some of the statements made by the witnesses. It is the stand of the petitioner that on the basis of such evidence, the charges lev elled against the petitioner could not have been held to be proved and thus, the finding arrived at by the Enquiry Officer being based on no evidence is liable to be interferred with. 7. In the counter affidavit filed by the respondent-Bank, supporting the im pugned orders, it has been stated that the departmental proceeding was initiated against the petitioner pursuant to a preliminary investigation relating to the illegality committed by the petitioner. As regards the allegation of the petitio ner that no question was directly put to him in the enquiry proceeding, it has b een stated that since the petitioner was represented by his defence counsel and as he defended his case through the said counsel and thus, it is not correct to say that the petitioner was not put any question. 8. In paragraph 4 of the counter affidavit, it has been categorically state d that the petitioner, on being transferred to Gossaigaon Branch on 1.3.2003, se rved there as Assistant Manager and also discharged the function of Passing Offi cer/officiating Accountant till he was dismissed from service on 24.2.2005 pursu ant to the aforementioned departmental proceeding. 9. Mr. L. Talukdar, learned counsel representing the respondent-Bank has pr oduced the records of the enquiry proceeding. He has also placed reliance on two decisions of the Apex Court of which, one is reported in AIR 1997 SC 2286 (High Court of Judicature at Bombay v. Udaysingh). The other judgment on which Mr. T alukdar, learned counsel has placed reliance, is one dated 11.8.2006 passed by t he Apex Court in Civil Appeal No.2055/2003 (State Bank of India & Ors. V. Ramesh Dinkar Punde) reported in (2006) 7 SCC 212. The aforesaid decisions have been pressed into service so as to remind the scope of interference of the writ Court in the matter of departmental proceeding. 10. I have considered the submissions made by the learned counsel for the pa rties and have also gone through the entire materials on record including the ad ditional affidavit filed by the petitioner on 17.2.2010. By the said additional affidavit, the petitioner has brought on record the order dated 4.2.2010 passed by the learned Civil Judge, Kokrajhar in Money Suit No.1/2006. The said money s uit was filed by the respondent-Bank against the petitioner and his wife for rec overy of Rs.8,77,327/-. By the said order dated 4.2.2010, the suit was dismisse d for non-adducing any evidence by the respondent-Bank. 11. By referring to the aforesaid order dated 4.2.2010 passed in Money Suit No.1/2006, it has been contended by the petitioner that since the respondent-Ban k failed to adduce any evidence towards recovery of the amount, allegedly defalc ated by the petitioner, the whole basis of departmental proceeding falls through and thus, the impugned orders are liable to be interferred with. 12. Although Mr. L. Talukdar, learned counsel representing the respondent-Ba nk submits that the Bank has preferred an appeal against the said order dated 4. 2.2010, this aspect of the matter need not detain us. The money suit was filed by the respondent-Bank for recovery of the particular amount from the petition er and his wife. According to the respondent-Bank, the petitioner was responsibl e for sanctioning the particular loans without any authority, which resulted in loss of substantial amount to the Bank. Apart from the fact that the suit was not decided on merit, the principle involved in the departmental proceeding is q uite distinct and different from that of the test to be applied in a civil proce eding. Merely because the suit against the petitioner and his wife was dismissed on technical ground, it cannot be said that the petitioner is absolved from his liability pursuant to his misconduct, which is tested applying the principle of pre-ponderence of probability. 13. As noted above, it is not the case of the petitioner that there was proc edural irregularity in conducting the enquiry proceeding. However, it is the sta nd of the petitioner that the other officers allegedly involved in the transacti on, which resulted in loss to the Bank being not taken up in the departmental pr oceeding, the petitioner alone could not have been taken up for such procedure. On being asked - as to whether any allegation has been made to that effect in t he writ petition, Mr. A.S. Choudhury, learned counsel for the petitioner fairly admitted that no such allegation finds mention in the writ petition. However, he submits that based on the evidence on record, it is clearly established that th e petitioner has been made victim of the circumstances and that, the witnesses e xamined on behalf of the disciplinary authority, who were the real culprits, hav e been allowed to go free of any liability. 14. Apart from the fact that no such allegation has been made in the writ pe tition, I also do not find any such allegation, either in the written brief (def ence-brief) submitted by the petitioner or in the proceedings of the enquiry. On perusal of the enquiry proceeding records produced by Mr. Talukdar, learned cou nsel representing the respondent-Bank, I do not find any such allegation made by the petitioner. 15. The Enquiry Officer in his report furnished charge-wise, has discussed t he entire evidence on record, based on which, it has been held that all the char ges against the petitioner stand proved. The Enquiry Officer has discussed the e vidence on record in detail including the documents exhibited during the enquiry proceeding. The said exhibits bear the signatures and handwritings of the peti tioner. As per the discussions made by the Enquiry Officer, on the basis of the evidence on record, the Drafts Exhibits NoslPEX 13 were prepared under instru ctions of the petitioner, which were duly signed by him. At that point of time, the petitioner was officiating as Branch Accountant. It is the finding of the En quiry Officer that the petitioner had completed the entire job all by himself re lating to the particular demand loans to a fictitious person against non-existen t STDRs. The handwritings and signatures appearing on the demand loan debit vouc hers as per Ext.PEX-23 to 25 are that of the petitioner. Further, the demand lo an ledger (Ext.PEX-29 to PEX-30) also bear the handwritings of the petitioner an d the loans were sanctioned by him against non-existent STDRs. 16. The aforesaid finding recorded by the Enquiry Officer on the basis of th e evidence on record cannot be lightly interferred with and that too, exercising the power of judicial review under Article 226 of the Constitution of India. It is in this context, Mr. Talukdar, learned counsel representing the respondent- Bank has placed reliance on the decision of the Apex Court in Ramesh Dinkar Pund e (supra). In the said decision, the Apex Court placing reliance on its earlier decisions, has reiterated the ambit and scope of interference in such matters a ppreciating the evidence like an appellate authority. 17. As has been held by the Apex Court in Chairman & Managing Director, Unit ed Commercial Bank v. P.C. Kakkar, reported in (2003) 4 SCC 364, a Bank officer is required to exercise higher standard of honesty and integrity. Dealing with t he public money, he is required to take all possible steps to protect the intere st of the Bank and to discharge his duties with utmost integrity, honesty and de votion and diligence and not to do anything, which is unbecoming of a Bank offic er. The good conduct and discipline are inseparable from the functioning of ever y officer/employee of the Bank. 18. The view taken by the Enquiry Officer on the basis of the evidence being plausible one, it is not for the writ Court to sit on appeal over the finding recorded by the Enquiry Officer and re-appreciate the evidence on record to arri ve at a different finding. Nothing could be shown by the petitioner to bring h ome the argument that the finding arrived at by the Enquiry Officer is based o n no evidence and/or suffers from perversity. 19. In Udaysingh (supra), the Apex Court dealing with the scope and ambit of writ Court to interfere with the penalty imposed pursuant to the departmental p roceeding, held that once the charge against the delinquent officer is establish ed, it should be left open to the said authority to impose any of the penalties prescribed and it would not be in the fitness of things to interfere with such p enalty imposed pursuant to the departmental proceeding. 20. In the instant case, from the materials on record, what has transpired i s that the petitioner was provided with full opportunity of being heard in the e ntire enquiry proceeding. He had engaged his defence counsel. The proceedings of the enquiry have been signed by the petitioner and his defence counsel. The opp ortunity of cross examining the witnesses was also provided and the same was dul y accepted by cross-examining the witnesses. On conclusion of the enquiry, the defence brief was also submitted. After the impugned order of dismissal from ser vice, the petitioner preferred an appeal, a copy of which has been annexed to th e writ petition as Annexure-7. In the appeal, no ground was urged to the effect that the petitioner was not responsible in the purported collective decision or that he has been made the victim of the circumstances. The appellate authority also in consideration of the grounds urged in the appeal and the entire materia ls on record, passed the impugned appellate order rejecting the appeal and I see no reason to interfere with. 21. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly, it is dismissed.