WP(C) 768/2003 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA. JUDGMENT AND ORDER (ORAL) Heard Mr. A.K. Roy, learned counsel for the petitioner as well as Mr. S. S. Sharma, learned senior counsel assisted by Ms L. Sharma, learned counsel for the respondent-Bank. 2. The petitioner is aggrieved by the Annexure-H order dated 20.3.2002, by which, he was imposed with the penalty of compulsory retirement from service pur suant to a departmental proceeding. 3. The charges that were levelled against the petitioner are as follows :- Charge-Sheet While you were working as an Assistant (Cash and Accounts) at our Madgharia bran ch, the following serious irregularities were committed by you - (a) You altered the amount in the Recurring Deposit interest Account voucher dated 24.12.98 relating to R.D. A/c No.R/5/809 closed at maturity from Rs.14,32 8/- to Rs.34,328/-. You also inflated the balance of Rs.316.85 as on 12.11.98 i n the Savings Bank account No.P/3c/2071 maintained by you jointly with Smt. Binu Bora, to Rs.20,316/85. The amount of Rs.20,000/- thus inflated fraudulently wa s withdrawn by you later on. (b) You also destroyed the following vital records of the branch to escape t he detection of your above fraudulent act - (i) Ledger sheets of SB A/c No.P/3c/2071 including the one where the alterat ion was done. (ii) R.D Progressive balance book for the relative period. (iii) R.D. Day Book sheets from 23.12.98 to 26.12.98. (iv) R.D. Account vouchers dated 24.12.98. (v) R.D. Interest Account vouchers dated 24.12.98. (vi) Demand Loans Account vouchers dated 24.12.98. (vii) Savings Bank Account vouchers of Day Book No.2 dated 24.12.98. (viii) Savings Bank Account Day Book sheets dated 12.11.98, 17.12.98, 18.12.98, 23.12.98 and 24.12.98. (ix) R.D. Interest A/c sheet dated 24.12.98 of Sundry Income Register. (x) Ledger sheet of Recurring Deposit A/c No.R/5/809. (xi) Transfer scroll sheet dated 24.12.98. (xii) Cash receipt Scroll dated 12.11.98. 2. By your above acts, you have violated the laid down instructions of the Bank and acted in a manner which is not only prejudicial to interests of the Ba nk but have also tarnished the image of the Bank before the public and the Bank’ s Customers. Your such acts of dishonesty and bad motive render yourself liable for initiation of disciplinary action against you. 3. You are hereby directed to show cause as to why disciplinary action shou ld not be taken against you for your above acts which attract the provision par agraph 521(4)(j) of the Sastry Award. 4. On receipt of the charge-sheet dated 26.8.1999, the petitioner submitted a cryptic reply without dealing with the specific allegation made in the charge s. For a ready reference, the reply to the charge sheet is also quoted below :- The Asstt. General Manager Guwahati Disciplinary Authority, Dated 17 Sept/99 Region-I, SBI, Z.O. Guwahati. (Through the Branch Manager, SBI, Madgharia). Sir, I acknowledge receipt of charge-sheet No.AGM(I)GEN/438 dt. 26.8.99. In connection with the charges levelled against me vide your above charge-sheet, I have the submission to state that I deny the charges levelled against me. I shall therefore, request you kindly to withdraw the charge-sheet and allow me to serve the Bank by reinstating me in the service. Yours faithfully, Sd/- (Sri B.P. Bora) Asstt. (Cash & Accounts) (under suspension) SBI, Madgharia. 5. In due course, the enquiry proceeding was drawn and completed through En quiry Officer, on completion of which the Enquiry Officer submitted his report d ated 12.12.2000 holding Charge No.1 to have been established partially and Charg e No.2 as not proved. While arriving at such a conclusion, the Enquiry Officer h eld that the particular document exhibited as PEX.1, by which the petitioner had admitted both the charges, being obtained under duress, cannot be ruled out. Ho wever, at the same time, the Enquiry Officer in his finding recorded the content ion of the defence representative that PEX.2 i.e. the deposit voucher, was also taken under duress, seemed to be not plausible. For a ready reference, the said finding recorded by the Enquiry Officer is quoted below :- In view of the deposition of the Prosecution witness as well as the Presenting Officer and Defence Representative in addition to the prosecution exhibits PEX.1 AND pex.2, I give my finding as under. A. The evidentiary value of PEX.1 is not irrefutable due to the reason that th e PW-1 had admitted that the confession letter was submitted by Shri B.P. Bora o n being asked by the fact finding team in which he as Branch Manager, was also a member. So, the Defence contention that PEX.1 was obtained under duress cannot be rules out. The contention of the Defence Representative that the PEX-2 also w as taken under duress does not seem to be plausible. The PW-2 had told that at the time of deposit of cash, Shri B.P. Bora was accompanied by his brother which rules out any possibility of duress. Moreover, as per Banking practice when cas e is sought to be deposited through a General Credit Confirmation from the depo sitor of cash is obtained on the reverse of the voucher itself before cash is t endered for receipt at the Cash Department. So the PEX-2 has irrefutably establ ished that an amount of Rs.20,000/- was deposited in cash by Shri B.P. Bora in Recurring Deposit Interest Account on 18.02.09. Though the Charge (A) remained inconclusive due to the absence of any irrefutabl e evidence or eye witness, based on the evidence PEX-2 indicating preponderance of probability that Shri B.P. Bora may have committed the act of misconduct con tained in Charge (A), it can be summarized that the Charge (A) stands proved par tially. B. The Prosecution depended solely on PEX.1 to substantiate the charge evid entiary value of which is not irrefutable. There was no eye witness to the alle ged acts contained in the charge. Moreover, the examination and cross-examinati on of P.W-1 revealed that the record room was freely accessible to the members o f staff during office hours. Based on the facts and evidences put before me I co nclude that the Charge (B) is not proved. 6. On receipt of the enquiry report, the disciplinary authority recorded hi s note of disagreement and forwarded to the petitioner by Annexure-D letter date d 30.1.2001 asking the petitioner to go through the findings and then, to furnis h his reply. 7. In response to the said note of disagreement, the petitioner made the An nexure-F representation dated 5.3.2001 stating that there was no material to tak e a different view of the matter than the one, which was taken by the Enquiry Of ficer. 8, On receipt of the representation of the petitioner, the disciplinary aut hority passed the final order dated 20.3.2002, which is impugned in this proceed ing. Before passing the final order, the disciplinary authority had given anothe r opportunity to the petitioner to make representation against proposed penalty of compulsory retirement from service. The said opportunity was furnished by le tter dated 24.1.2002 (Annexure-G to the writ petition). 9. Mr. Roy, learned counsel for the petitioner has submitted that the disci plinary authority before arriving at final disagreement note, ought to have been given the petitioner an opportunity of being heard. Another submission made by him is that the petitioner having been charged under paragraph 521 (4) (j) of S astry Award could not have been imposed penalty in reference to another clause o f the said paragraph, which is paragraph 521 (4) (d). 10. In support of the submission made by Mr. Roy, learned counsel for the pe titioner, he has placed reliance on the decision of this Court reported in 2000 (2) GLT 661 (Kable Singh Sanghere v. State of Arunachal Pradesh & Ors) and the d ecision of the Apex Court reported in AIR 2003 SC 1100 (State Bank India v. K.P. Narayanan Kutty) . 11. Mr. S.S. Sharma, learned senior counsel appearing for the respondent-Ban k, on the other hand, has submitted that it being a case of admission of guilt b y the petitioner, the disciplinary authority rightly awarded the punishment, rat her, taking the matter leniently. He submits that since the petitioner was given opportunity to make representation against the note of disagreement, there was substantial compliance of principles of natural justice. Referring to the count er affidavit filed by the respondents, he has submitted that when the confessi onal statement of the petitioner was in his own handwriting, the Enquiry Officer , without any evidence, ought not to have held that the possibility of duress ca nnot be ruled out. In support of his submission, Mr. Sharma, learned senior coun sel has placed reliance on the decision of this Court dated 23.9.2011 in WP(C) N o.3436/2008 (Bharati Boro v. State Bank of India & Ors). 12. I have considered the submission made by the learned counsel for the par ties and also materials available on record. 13. In Kable Singh Sanghere (supra), the Division Bench of this Court held that the penalty imposed by the disciplinary authority disagreeing with the find ing of the Enquiry Officer exonerating the delinquent was bad in law as no oppor tunity was afforded to the delinquent in respect of the disagreement recorded by the disciplinary authority. 14. In K.P. Narayanan Kutty (supra) also, the opportunity of hearing to the delinquent in case of disagreement of the disciplinary authority with the findin g of the Enquiry Officer was emphasized. Referring to the earlier decisions of the Apex Court, it was held that wherever the disciplinary authority disagrees w ith the report of the Enquiry Officer, providing an opportunity is necessary to satisfy the principles of natural justice. 15. In the instant case, the note of disagreement, as recorded by the discip linary authority was furnished to the petitioner asking him to make his comments /representation against the same. It is not the case of imposition of penalty wi thout affording opportunity of being hard to the petitioner solely on the basis of the note of disagreement. Before passing the final order, impugned in this p roceeding, the petitioner was afforded with opportunity to make representation a gainst the notes of disagreement in respect of the enquiry report. 16. In response to the said notes, the petitioner had submitted his represen tation making his points on the notes of disagreement and it was only thereafter the disciplinary authority passed the impugned order. On that occasion also, he was given another opportunity to show cause against the proposed penalty. 17. The decision in Smt. Bharati Boro (supra) is somewhat similar to the ins tant case, in which, it has been held thus :- 33. Law is well settled in this regard. The disciplinary authority engages t he enquiry officer to enquire into the charges. On the basis of the findings rec orded by the enquiry officer, the disciplinary authority may agree or disagree w ith the same. In case of disagreement the points relating to disagreement are r equired to be furnished to the delinquent giving him opportunity to have his say in respect of the same. In this connection, the decisions reported in (1998) 7 SCC 84 ( Punjab National Bank & ors. vs. Kunj Behari Mishra) ; (2000) 1 SCC 416 (High Court of Judicature at Bombay vs. Shashikant S. Patil & anr); (1999) 7 SCC 739 (Yoginath D. Bagde vs. State of Maharastra & anr.); AIR 2001 SC 2398 (State Bank of India & ors. vs. Arvind Kr. Sukla) may be referred to. 34. In Shashikant S. Patil (supra), the Apex Court dealing with the legal po sition relating to the role of the disciplinary authority in the matter of disag reement with the findings of the enquiry officer, observed thus: ’19. Reasoning of the High Court that when the Disciplinary Committee differed from the finding of the enquiry officer it is imperative to discuss the material s in detail and contest the conclusion of the enquiry officer, is quite unsound and contrary to the established principle in administrative law. The Disciplinar y Committee was neither an appellate nor a revisional body over the enquiry offi cer’s report. It must be borne in mind that the enquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials colle cted in such enquiry as well as the views are expressed by the enquiry officer t hereon. The findings of the enquiry officer are only his opinion on the materia ls, but such findings are not binding on the disciplinary authority as the decis ion making authority is the punishing authority and, therefore, that authority c an come to its own conclusion, of course bearing in mind the views expressed by the enquiry officer. But it is not necessary that the disciplinary authority sho uld discuss materials in detail and contest the conclusions of the enquiry offi cer . Otherwise the position of the disciplinary authority would get relegated t o a subordinate level. 20. The legal position on that score has been stated by this Court in A.N. D’Sil va vs. Union of India that neither the findings of the enquiry officer nor his r ecommendations are binding on the punishing authority. The aforesaid position wa s settled by a Constitution Bench of this Court way back in 1963 (Union of Indi a v. H.C. Goel). The Bench held that the Government may agree with the report o r may differ, either wholly or partially, from the conclusions recorded in the r eport . Their Lordships laid down the following principle: ’If the report makes findings in favour of the public servant and the Government disagrees with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionall y what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf.’ 35. In the case reported in (1996) 2 SCC 12 (Additional District Magistrate vs. Prabhakar Chaturvedi & anr), the Apex court emphasizing on the probative val ue involved in a departmental enquiry held that the delinquent involved in the s aid case having voluntarily admitted the fact of non-deposit of the amount of Rs .21,000/-, the charge against him already stood proved. In the case reported in AIR 2005 SC 2090 (Canara Bank vs. V.K. Awasthy), the Apex court dealing with t he proportionality of punishment imposed on a delinquent bank employee, held tha t the action of the delinquent being prejudicial to the bank’s interest, dismis sal from service was proper. 36. When there is no dispute that the disciplinary authority is vested with the power and jurisdiction to disagree with the findings of the enquiry officer on the basis of the available materials and when the requirement is a prepondera nce of probability towards establishing the charge in a departmental enquiry, I am of the considered opinion that the impugned orders cannot be said to be arbit rary and/or illegal. The charge against the petitioner stood established on the face of it. Any amount of leniency and that too, when the service involved is in a financial institution like a nationalized bank coupled with the kind of defen ce projected by the petitioner, would be antithesis to the requirement of stern action against financial irregularities committed with a calculated design and m ethodology. 18. As regards the submission that the petitioner having been charged as per the provisions of paragraph 521 (4) (d) of the Sastry Award, he could not have been imposed with the penalty with regard to paragraph 521 (4) (d) of the said A ward, the same has been explained in the counter affidavit filed by the responde nts. For a ready reference, both the clauses are reproduced below :- &..Para 521 (4) (d) - Wilful damage or attempt to cause damage to the property of the bank or any of it’s customers. & &Para 521 (4) (j) - doing any act prejudicial to the interest of the bank or gr oss negligence or negligence involving or likely to involve the bank in serious loss. 19. On a reading of the said two clauses, it is seen that both the provision s are more or less similar. That apart, mere wrong mentioning of particular prov ision cannot lead to the inference that there was non-application of mind. The question that had arisen before disciplinary authority was as to whether the pet itioner had attempted to cause damage to the property of the Bank and also as to whether his conduct was prejudicial to the interest of the Bank. Such elements having been established in the enquiry proceeding, there was nothing wrong in me ntioning paragraph 521 (4) (d) instead of paragraph 521 (4) (j). In any case, i t will not make any difference to the gravity of the misconduct stood establishe d in the enquiry. 20. The most vital aspect of the matter about which the disciplinary authori ty has also mentioned in the note of disagreement is the own admission on the pa rt of the petitioner vide Ext.PEX.1, a copy of which is enclosed to the counter affidavit. By the said note of admission, the petitioner admitted the facts alle ged in the charge. Not only that, the petitioner also admitted refund of Rs.20,0 00/-, which he had drawn in excess from his own joint account by manipulating fi gures. That apart, the petitioner also by his Annexure-C (1) letter addressed to the Branch Manager admitted his misconduct. 21. As has been held by the Apex Court in Channabasappa Basappa Happali v. State of Mysore, reported in AIR 1972 SC 32, the admission of facts alleged in h is charge amounts to admission of guilt. The petitioner having himself admitted the charge levelled against him, the Enquiry Officer could not have held that su ch admission was under possible duress without any concrete material and/or find ings to that effect. It completely lost sight of the Enquiry Officer that the co nfessional statement of the petitioner was in his own handwriting followed by de posit made by him to make good the loss of Rs.20,000/-. 22. In case of Bank employees, it is a matter of confidence. Once the confid ence is lost, the employer has every right to dispense with the services of the employee after following due procedure. The Bank taking a lenient view of the ma tter, imposed the penalty of compulsory retirement from service, which naturally entitled the petitioner the service benefits, except full length of service. 23. For all the aforesaid reasons, I do not find any merit in this writ peti tion and accordingly, it is dismissed.