WP(C) 3436/2008 BEFORE HON’BLE MR JUSTICE B.K. SHARMA 1. The challenge in this writ petition is the order of penalty impo sed on the petitioner pursuant to a departmental proceeding which has been affir med on departmental appeal and review. The brief facts leading to filing of the instant writ petition are as follows: 2. While the petitioner (now substituted by his wife on his death) was wor king as Senior Assistant in the particular branch of the respondent bank, a memo randum of charge sheet dated 08.11.2005 (Annexure-A) was issued alleging misappr opriation of an amount of Rs. 8,10,000/- by increasing/altering the figures/amou nts of the Govt. bills numbering 11 (eleven) indicated in the charge sheet. For a ready reference, the memorandum of charge sheet is reproduced below: MEMORANDUM PROVATE & CONFIDENTIAL Shri Thaneswar Boro Senior Assistant (U/S) State Bank of India Rangiya Branch CHARGE SHEET It is alleged that while working as Senior Assistant/ Paying Cashier at our Rangiya Branch during the period from December 2004 to April, 2005, you had committed the following irregularities. i) While making payment you had altered/increased the figures/amount of the following Government bills of different State Government Department in the Gove rnment Debit Scrolls as well as in the Cash Payment Register subsequent to the b ills being passed by the concerned passing officer and sent for payment. Whereas you had made cash payment to the Government Cashiers the actual amounts as appe aring in the Government Bills and passed by the Passing Officer, you had misappr opriated the difference amounts to the tune of Rs. 8,10,000/-. Sl No. T.V. No. & Date Name of the Deptt. Bill amount (Rs.) Amount i nflated by you and debited to the Govt. account (Rs.) Excess Drawn (Rs.) 1 45 13.12.2004 SDO, AH & Vety. Rangiya 20,000.00 1,20,000.00 1,00,000.00 2 16 17.12.2004 E.E., PHE, Rangiya 5,345.00 15,345.00 10,000.00 3 103 08.01.2005 Bardal M.E. School 37,205.00 1,37,205.00 1,00,000.00 4 367A 11.01.2005 BEEO, Rangiya 2032.00 52,032.00 50,000.00 5 538 13.01.2005 Kamalpur H.S. School 7269.00 57,269.00 50,000.0 0 6 79 10.02.2005 Maranjana M.E. Madrassa 6299.00 56,299.00 50,000.0 0 7 74(A) 24.03.2005 EE, Borolia Div. (Irrigation) 25,000.00 1,25,000.00 1,00,000.00 8 1123 29.03.2005 BEEO, Rangiya Baranghati Sr. Basic 1676.00 51,676.0 0 50,000.00 9 71 31.03.2005 Manager, Eri Seed Grainage, Goreswar 2018.00 1,02,018 .00 1,00,000.00 10 72 08.04.2005 BEEO, Kamalpur (Baronghati TC) 23020.00 1,23,020 .00 1,00,000.00 11 18 11.04.2005 Suptd. Of Sericulture, Rangiya 26,797.00 1,26,797 .00 1,00,000.00 Total Excess Drawn= 8,10,000.00 02. By your above acts, you have violated the laid down instructions of the Bank and acted in a manner which is prejudicial to the interest of the Bank. Your su ch acts of negligence rendered yourself liable for initiation of disciplinary a ction against you. 03. Your above acts are in violation of the provisions as contained in para 5(i) of the Memorandum of Settlement of Disciplinary Action Procedures for Workmen d ated the 10th April, 2002. You are, therefore, directed to show cause as to why disciplinary action should not be initiated against you. 04. Your reply to the above charges should reach the Branch Manger, Rangiya Bran ch within 15 days from the date of receipt of this charge sheet, failing which i t will be deemed that you have no explanation to submit in your defence and the Bank will be free to take any action it may consider fit. In this connection, th e list of documents and witnesses to be relied upon in the proceedings are furni shed in Annexure-I. Please note that the list is not exhaustive and the Bank res erves the right to include/add such other witnesses, documents, correspondences, matters etc. as may be required to establish the charges. 05. Please acknowledge receipt on the duplicate copy of the charge sheet under y our full signature with date in token of your having received the original and r eturn the same to us for our further necessary action. Sd/- Asstt. General Manager (R-I) & Disciplinary Authority. 3. On receipt of the charge sheet, the petitioner without dealing with the particulars referred in the same, submitted his reply dated 13.12.2005 (Annexur e -B) as follows: The Asstt. General Manger State Bank of India, Zonal Office, Guwahati Date: 13.12.2005 Dear Sir, CHARGE SHEET With reference to you Memo No. AGM/Genl/618 dated 08.11.2005, I hereby d eny the alleged charges leveled against me. I request you kindly to exonerate me from the alleged charges leveled ag ainst me. Yours faithfully, Sd/- (Thaneswar Boro) Senior Asstt. (U/S) 4. In due course, the enquiry officer was appointed and he conducted the en quiry. On conclusion of the same, both the parties, i.e. the petitioner and th e disciplinary authority, submitted their written briefs. The enquiry officer in his report dated 02.01.2007 held the petitioner not guilty of the charges with the following conclusions: CONCLUSION:- Presenting officer has not mentioned anything about the Govt. debi t scrolls in his brief despite the allegation is made that the figures/amounts t herein are altered/increased. All the passing officers of the bills are made pro secution witnesses but they have not also made any statement in the enquiry that the figures/amounts are altered in the Govt. debit scrolls after the bills bein g passed by them for the actual amount and sent for payment. The reason for non submission of bills as stated by presenting officer in his brief that the bills are in the office of the Accountant General, Govt. of Assam, Guwahati can not b e viewed as valid reason for the enquiry in the interest of the justice since th e copies of fraud related documents need to be entered in the Branch document Re gisters and need to be retained under the sole custody of the Branch Manager. Au thority letters in the strength of which bank had paid the bill amounts to the b earer of the bills are also not produced although they are to be in the branch r ecord. In view of this and also explanation made in para 1 to 7 above it can not be declared that the allegation made against Shri Thaneswar Boro in the charge sheet as proved. 5. On receipt of the enquiry report, the disciplinary authority addressed t he Annexure-F letter dated 16.03.2007 to the petitioner recording therein the no tes of disagreement with the enquiry report and asked the petitioner to submit h is reply to the same. As in the case of reply in response to the memorandum of c harge sheet referred to above, against the note of disagreement also the petitio ner without specifically dealing with the points, submitted is reply dated 13.04 .2007 (Annexure-G) with the following statements: To The Asstt. General Manger, State Bank of India, Zonal Office, Rangiya, Guwahati Date : 13th April, 2007 (Through the Branch Manager, SBI, Rangiya Branch) Dear Sir, DEPARTMENTAL ENQUIRY ENQUIRY REPORT CUM FINDINGS Acknowledging your letter No. AGM(I)/GEN/1329 dated 16.03.2007, I like to submit the following points for your perusal. 1. That sir, I was charge sheeted and departmental enquiry was held. During the proceedings of the enquiry, related documents were placed, witnesses were produc ed and the whole process was concluded after several sittings. Enquiry Officer a ppointed by you has submitted his findings (enclosed by you) basing on the proc eedings of the enquiry. 2. Now you have raised some points vide your above letter of which most of the p oints were already placed and deliberated upon extensively during the enquiry pr oceedings. 3. The point now you have raised are not within the framework of the charge shee t issued to me which amounts to denial of natural justice. As per the explanations submitted above, I do not find anything to submit any mo re. I, therefore, request you kindly to reinstate me in my services exonerating me f rom all charges on the basis of the findings of the Enquiry Proceedings. Yours faithfully, Sd/- (Thaneswar Boro) Sr. Asstt. (U/S) SBI, Rangiya Branch 6. After these developments, the disciplinary authority of the bank by its letter dated 28.08.2007 (Annexure-H) communicated the petitioner about the prop osed penalty of dismissal from service. The letter also indicated about treating the period of suspension as not on duty . For a ready reference, the order dat ed 28.08.2007 is quoted below: ORDER I, as Disciplinary Authority have gone through and examined the in detail the en quiry proceedings, the enquiry report-cum-findings dated 02.01.2007 of Shri P.K. Baruah, MMGS-III, the Enquiry Officer, in connection with the Disciplinary Proc eedings initiated against Shri Thaneswar Boro, Sr. Assistant (U/S) vide Memo No. AGM(I)/GEN/698 dated 08.11.2005. 02. After perusal/examination of the relevant papers/documents/records, ava ilable circumstantial evidences and the enquiry report-cum-findings, it is obser ved that the charges/allegations leveled against Shri Thaneswar Boro, Sr. Asstt. (U/S) have been proved. I have applied my mind dispassionately to the case and taking into consideration all other aggravating and extenuating circumstances, p ast records and gravity of the misconduct, I propose to inflict the following pu nishment on Shri Thaneswar Boro, Sr. Assistant (U/S) under gross misconducts as per provisions made in clause 6(a) of Memorandum of Settlement of Disciplinary A ct Procedure for Workmen dated 10.04.2002. Be Dismissed without Notice 03. In this connection, I have also decided to threat the period of suspensi on in respect of Shri Thaneswar Boro, Sr. Asstt. (U/S) as NOT ON DUTY . Accordi ngly, no salary and allowances will be paid to Shri Thaneswar Boro, Sr. Asstt. ( U/S) for the period of his suspension. However, the subsistence allowance alread y paid to Shri Boro during the period under suspension will not be recovered on humanitarian grounds. 04. If Shri Boro, the charge sheeted employee, desires to show cause against the nature of proposed punishment, he may appear before me or submit his repres entation on 14.09.2007 at 4:00 PM at my chamber/room at State Bank of India, Zon al Office, Guwahati, Region-I. If he fails to appear before me or submit his rep resentation as stated above, it will be presumed that he has no submission to ma ke against the proposed punishment and the Bank shall proceed further in the mat ter accordingly. Sd/- Asstt. General Manger (R-I) & Disciplinary Authority 7. By passing the aforesaid order, the disciplinary authority afforded oppo rtunity to the petitioner to submit his reply to the proposed punishment and als o to appear before it on 14.09.2007. On 14.09.2007, the petitioner addressed the following letter to the disciplinary authority. As in the earlier two occasions indicated above, on that occasion also the petitioner did not deal with the con tention raised in the order quoted above and submitted his reply with a simple d enial without urging any grounds of denial. The Asstt. General Manger (Region-I) & Disciplinary Authority, State Bank of India, Zonal Office, Guwhati Sir, DISCIPLINARY ACTION With reference to Disciplinary Authority’s order dated 28.08.2007 forwarded unde r the cover of letter No. AGM(I)GEN/559 dated 28.08.2007, I beg to advise as und er. That the impugned order is arbitrary and also a non speaking order There is no evidence that the Departmental enquiry proceeding detailed statemen t of defence/enquiry officer’s finding etc. had received due consideration. Under the above mentioned circumstances, I am left with no other alternative but to disagree with the contents of the above mentioned letter/order. Yours faithfully, Sd/- (Thaneswar Boro) Sr. Asstt. (U/S) SBI, Rangiya Branch 8. The disciplinary authority passed the impugned order of penalty of dismi ssal from service on 06.10.2007. In the order it was also indicated that period of suspension would be treated as not on duty . The order is quoted below: FINAL ORDER I, as Disciplinary Authority had given order on 28.08.2007 regarding proposed pu nishment in respect of Shri Thaneswar Boro, Srnior Assistant (U/S), State Bank o f India, Rangiya Branch. 02. Shri Thaneswar Boro, Senior Assistant (U/S), appeared before me on 05.10 .2007 at 10:45 AM in my chamber for personal hearing. I have heard the submissio n of Shri Thaneswar Boro, Senior Assistant (U/S) dispassionately and also gone t hrough the representation submitted by him. As no new point was put forward to m e during the aforesaid personal hearing and also in the said representation, I h ave decided to confirm the proposed punishment inflicted on Shri Boro. According ly, I hereby order that the penalty of Be Dismissed Without Notice under gross misconduct as per provisions made in para/ clause 6(a) of Memorandum of Settlem ent of Disciplinary Action Procedure for Workmen dated 10.04.2002, be inflicted on Shri Thaneswar Boro, Senior Assistant (U/S), to meet the ends of justice. 03. In this connection, I have also decided to treat the period of suspensio n in respect of Shri Thaneswar Boro, Senor Assistant (U/S) as NOT ON DUTY . Acc ordingly, no salary and allowances will be paid to Shri Thaneswar Boro, Senor A ssistant (U/S) for the period of his suspension. However, the subsistence allowa nce already paid to Shri Boro during the period under suspension will not be rec overed on humanitarian grounds. 04. A copy of this order may be served on Shri Thaneswar Boro, Senior Assist ant (U/S) in the usual manner. Sd/- Asstt. General Manger & Disciplinary Authority 9. In response to the said order of penalty and the liberty granted to the petitioner to prefer an appeal against the said order, the petitioner made Annex ure-K appeal dated 29.11.2007 to the appellate authority. As in the earlier occa sions, on that occasion also the petitioner did not urge any grounds against the said order of penalty, but only referred to the documents indicated therein and prayed for setting aside of the impugned order of penalty. 10. The appellate authority having dismissed the appeal by its order dated 2 9.01.2008 (Annexure-L), the petitioner preferred a review petition on 03.03.2008 and as on earlier occasions in the review petition also he did not urge any gro unds, but prayed for review of the order. The review petition also having been d ismissed, the petitioner invoked the writ jurisdiction of this Court by filing t he instant writ petition. During the pendency of the same he having expired, his wife Smti. Bharati Boro has stepped into his shoes. 11. The respondents have filed their counter affidavit denying the contenti ons raised in the writ petition. It has been stated that on the face of it, the charges against the petitioner stand established and thus the enquiry officer c ould not have held that the charges as not established. In this connection, the letter dated 13.06.2005 made by the petitioner to the respondent Bank admitting the charge has also been referred to. Another pertinent point raised in the cou nter affidavit is that at no point of time the petitioner denied his written co nfession dated 13.06.2005. It has also been stated that subsequently the petitio ner refunded the misappropriated amounts to Govt. accounts through treasury chal lans. 12. In the reply affidavit filed by the petitioner, it has been contended th at the letter dated 13.06.2005 purportedly admitting the misconduct being not p art of the enquiry, the respondents cannot place reliance on the same. The petit ioner has also denied refund of the misappropriated amounts. 13. I have heard Mr. P.K. Roy, learned counsel for the petitioner as well as Mr. S.S. Sarma, learned Sr. counsel assisted by Mr. G. Jalan, learned counsel f or the respondent bank. 14. While Mr. Roy, learned counsel for the petitioner painstakingly argued r eferring to the observations made by the enquiry officer and the other materials on record so as to contend that the impugned orders are not sustainable in law, Mr. S.S. Sarma, learned Sr. counsel appearing for the bank referring to the rec ords pertaining to the proceedings produced by him, submitted that on the face o f it the petitioner was guilty of the charges leveled against him. He also subm itted that the confidence reposed on the petitioner by the bank having been misu tilised by the petitioner towards misappropriating the amounts in question, irre spective of refund of the amounts through treasury challans by the petitioner, t he bank rightly decided to terminate the service of the petitioner. 15. I have considered the rival submissions made by the learned counsel for the parties. I have also given my anxious consideration to the materials availab le on record including the records pertaining to the disciplinary proceeding. My findings are as follows: 16. The charge sheet dated 08.11.2005 (Annexure-A) has been quoted above. On perusal of the same, the methodology adopted by the petitioner towards inflatio n of the bill amounts is clearly discernible. Such inflation having been made i n 11 (eleven) bills, it cannot be said to be an omission and/or mistake in calcu lating the figures as was contended by the learned counsel for the petitioner. I n all the 11 documents there was inflation of the figures by insertion of inflat ed figures. 17. While it is true that the letter of confession dated 13.06.2005 by which the petitioner had admitted the charge of misappropriation did not form part of the enquiry report, but the said confession coupled with other materials on rec ord cannot be brushed aside, particularly when the same was clearly mentioned in Annexure-F disagreement note dated 16.03.2007. However, I hasten to add that th e said letter dated 13.06.2005 is not the basis of anyone of the findings record ed in this judgment. 18. As to what was the reply of the petitioner to the charge sheet has been noted above. When the charge sheet itself depicted the inflation and the misappr opriation made by the petitioner, it was incumbent on his part to deal with all the 11 figures and for that matter, the allegations made in the charge sheet ins tead of responding to the same with a simple denial and with a request to exone rate him from the charges. 19. On perusal of Annexure-C and Annexure-D written briefs submitted by the Presenting Officer and the representatives of the petitioner, it appears that nu merous documents were exhibited including the tempered documents with inflations therein. A little reference to the said documents at this stage will be relevan t. 20. In respect of the allegations relating to the bill amounts at serial No. 1, 2 and 3, the relevant documents exhibited are PEX-1(A), PEX-17, PEX-1(D) for serial No. 1; PEX-2(A), PEX-17, PEX-2(D) for serial No. 2 and PEX-3(A), PEX-18, PEX-3(D) and PEX-3(E) for serial No. 3. The said documents are payment register , copies of the statement showing the details of paid Govt. bills during Decembe r, 2004 and January, 2005 issued by the Treasury Officer, Rangiya having the ent ries dated 13.12.2004 and 17.12.2004. The said documents had been admitted by th e defence representatives. 21. As regards the amounts involved in serial No. 4, 5 and 6, the related do cuments exhibited are PEX-4(A), PEX-18, PEX-4(D) and PEX-4(E) for serial No. 4; PEX-5(A), PEX-18, PEX-5(D) and PEX-5(E) for serial No. 5 and PEX-6(A), PEX-19 an d PEX-6(D) for serial No. 6. In the written brief, the Presenting Officer clearl y indicated the said documents and the contents thereof to show as to how the bi lls were inflated by the petitioner. The Presenting Officer also referred to the depositions of PW 1 and PW 2. 22. As regards the amounts involved in serial No. 7 to 11, the related docum ents exhibited are PEX-7(A), PEX-20, PEX-7(D) for serial No. 7 ; PEX-8(A), PEX-2 0, PEX-8(D) for serial No. 8 ; PEX-9(A), PEX-20 and PEX-9(D) for serial No. 9 ; PEX-10(A), PEX-21, PEX-10(D) for serial No. 10 and PEX-11(A), PEX-21 and PEX-11( D) for serial No. 11. 23. As in the other Bills referred to above, in respect of these bills also the Presenting Officer in his written brief had drawn link towards establishing the charge against the petitioner and while doing so he also referred to the de positions made by PW 1, PW2, PW5 and PW6. It was submitted that on the basis of the deposition of the prosecution witnesses and also on the basis of the documen tary evidence it was evident that the charges leveled against the petitioner sto od proved beyond any doubt. 24. As against the above, the defence representative of the petitioner it wa s submitted that the Govt. debit scroll and payment register were not altered/ i ncreased. It was also contended that in absence of any complaint lodged by the T reasury Officer, the charges could not have been leveled aginst the petitioner. However, simultaneously it was also submitted that the charges were prepared no t only on the basis of the Govt. bills in question, but also on the basis of the allegations made by the Treasury Officer. As regards the certificate issued by the Treasury Officer PEX-17, PEX-18, PEX-19, PEX-20, PEX-21 , it was submitted that the said additional documents did not establish the charge as the certific ate was not on the basis of the original bills. 25. As regards the plea of the respondent bank that the amount misappropriat ed was refunded by the petitioner through treasury challans, it was contended t hat such treasury challans could be signed by any 3rd party on behalf of the ten derer. It was also contended that in the relevant column towards refunding the a mount, it was written as paid in excess through oversight. 26. On the basis of the aforesaid statements made by the disciplinary author ity and the petitioner, the enquiry officer held that the charges leveled agains t the petitioner were not established. While doing so, the said authority heavil y placed reliance on the stand of the defence representative that there was no s ign of any alteration/inflation in the related documents. The said authority als o swallowed the plea that the Govt. bills in question were passed after verifica tion of the amounts/figures in bills. 27. The crucial question for consideration of the enquiry officer was as to whether there was inflation of the bills by putting non-existent figures ahead of the actual figures. The charge was not that of erasing the actual figures so as to substitute them by other figures. As indicated above, the modus operandi towards inflating the bills was to put a figure ahead of the actual figures. As for instance, at serial No. 1 of the charge sheet the bill amount was Rs. 20,0 00/-, but the same was made Rs. 1,20,000.00 by putting the figure 1 ahead of R s. 20,000.00. 28. When the above was the modus operandi, naturally the bills themselves di d not prima facie indicate the inflation of the amounts by any alteration in the actual figures. The enquiry officer also heavily placed reliance on the treasur y challans PEX-1(D) to PEX-11 (D) through which misappropriated amounts were r efunded with the remarks paid in excess through oversight . However, while doin g so, it totally escaped the notice of the enquiry officer that as many as in 11 bills there were excess payment and on being caught, the petitioner refunded th e same through treasury challans with the said remark because he could not have stated in the treasury challans that the amounts were misappropriated by him by above modus operandi. 29. Another important aspect of the matter is that the enquiry officer while holding that the petitioner did not misappropriate the amounts surprisingly obs erved that in absence of any other papers/documents from Shri Boro, CSE admitti ng either the excess amount were drawn and misappropriated by him on the challan amounts were replaced by him once he had drawn and misappropriated as alleged i n the charge sheet, it could not be agreed without examining the Govt. Cashiers/ bearers of the bills who had actually received the bill amounts that Shri Boro,