IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9330 of 2011 Manjhulika Srivastava W/o Sri Anup Kumar Srivastava R/o Jain College,Purvi Gate, Katira, P.S. and Dist- Bhojpur at Ara. ---Petitioner. Versus 1. The Madhya Bihar Gramin Bank through its Managing Director, Head Office -Meena Plaza, South of Museum, Patna 800001. 2. The Managing Director, Madhya Bihar Gramin Bank Head Office- Meena Plaza, South of Museum, Patna 800001 3. The Regional Manager, Madhya Bihar Gramin Bank, Regional office, Sri Harekhan Jai Trust Bhawan, Harji Ka Hatta, Dist- Ara. 4. The Senior Manager, Madhya Bihar Gramin Bank, Ara, Bhojpur. 5. The Branch Manager, Madhya Bihar Gramin Bank, Ara, Bhojpur. ---Respondents. For the petitioner : Mr. Naresh Dixit, Advocate. For the Bank : Mr. Mahesh Narayan Parbat, Advocate. ----------- 04 05.07.2011 Heard both sides. This Court is rather shocked looking at the pleadings and the submissions of the petitioner in support of relief in the present writ proceeding. Petitioner has prayed for issuance of writ in the nature of certiorari for setting aside the communication contained in letter no. Niri/10-11/12 dated 23.04.2011 (Annexure-15) issued by the respondent Senior Manager (Department of Inspection and Control), Madhya Bihar Gramin Bank Ara ( for short „ Bank‟) whereby she has been directed to pay the amount in instalment(s). Background facts are as follows:- Petitioner was serving as an Officer of the Bank and was functioning as Officer to authorize payments against the bills/ cheques. A cheque bearing no. TFS 271056 dated 16.07.2010 for a sum of Rs. 80,000/- (Eighty thousand) drawn on S.F. account no. 15805 of Smt. Varsha in favour of one Sri Harendra Kumar was presented for payment. On the said date the total balance amount in the said account was only Rs. 2 10,079.50/-(Ten thousand seventy nine and fifty paise). The cheque was to be finally passed for payment by the petitioner. The petitioner without verifying balance in the said account and thereby refusing to honour the cheque for insufficient fund passed payment order for the aforesaid amount of Rs. 80,000/- (Eighty thousand) and accordingly, the payment of the said amount was made to the bearer of the cheque. In this way an excess payment of Rs. 72000/- (Seventy two thousand) was made in the said account and a shortfall in cash to the tune of Rs. 72,000/- (Seventy two thousand) occurred at the time of closure of cash book of the Bank. Petitioner having realized the same, requested the senior Bank official to advance her a sum of Rs. 72,000/- (Seventy two thousand) enabling her to assimilate the account. The request letter of the petitioner is contained in Annexure-2. For better appreciation, this Court, extract the contents of the letter hereinbelow:- ^^ lsok esa] “kk[kk izca/kd] e0 fo0 xzk0 cSad] “kk[kk] vkjk A egk”k;] fuosnu ;g gS fd vkt fnukad 16-07-10 dks psd la[;k 271056 :0 80]000@& dh txg cpr [kkrk la0 15805 esa :0 8000@& ¼vkB gtkj ek=½ dEI;qVj esa MsfoV jkf”k ikfjr dj :0 80000@& ¼vLlh gtkj ek=½ dk Hkqxrku vkns”k esjs }kjk fn;k x;k A QyLo:Ik mDr [kkrk esa :0 72]000@& dk vf/kfod’kZ gks x;k @ lacaf/kr [kkrk esa fn0 16-07-10 dks vofLFkr “ks’k :0 10]079=50 Fkk A :0 8000@& MsfoV i'pkr~ mDr [kkrk dk vofLFkr “ks’k :0 2079=50 gS A :0 72]000@& dh jkf”k esjs }kjk tek djuk laHko ugha gS A vr% vuqjks/k gS fd eq>s 72]000@& gtkj vfxze iznku djus dh vuqefr iznku dh tk; A vf/kfod’kZ ds lek;kstu gsrq iz;kl tkjh gSs A ;fn lacaf/kr jkf”k dk lek ;kstu ugha gksxk rks eSa mDr jkf”k tek dj nwWaxh A g0@ v0 fo'oklHkktu g0@ v0 eatqfydk JhokLro v0 “kk[kk vkjk A** Bank official(s) came to her rescue and she was advanced a 3 sum of Rs. 72,000/- (Seventy two thousand) by creating a suspense account. The petitioner thereafter lodged an F.I.R. against the holders of the account. Said matter is pending investigation. The officials of the respondent Bank put her on notice to refund the said amount. Since the petitioner failed to refund the amount the impugned order as contained in Annexure 15 was passed and served on her. Petitioner has impugned the aforesaid communication/order. Learned counsel for the petitioner submits that authorities of the respondent Bank are required to initiate a proceeding against her for realization of said amount of Rs. 72,000/- (Seventy two thousand). In this connection, she relies on Section 28(2) of Regional Rural Banks Act (for short the „Act‟). According to the petitioner, the act of the petitioner in passing the said amount for payment would not constitute wilful act or default. Referring to Section 39 of the Regional Rural Banks (Officers and Employees) Service Regulations, 2010 ( for short the „regulation‟) (Annexure 16), it is submitted that recovery from emoluments or such other amounts as may be due to Bank employee would constitute penalty to be imposed in terms of the aforesaid provision of the Regulation. The Bank was, therefore, required to proceed against her in terms of the aforesaid regulation in order to realize the loss said to have incurred in authorizing excess payment against the said account. Learned counsel for the respondent Bank, on the other hand, submitted that the amount of Rs. 72,000/- (Seventy two thousand) was paid by way of advance on the request of the petitioner as would appear from Annexure-2. An assurance was given therein by the 4 petitioner to pay back the said amount to the Bank in case it is not realized from the holder of the said account. It is submitted that the provision of the service regulation would not be applicable in the particular facts of the present case as it is a case of mere adjustment of advance taken by the petitioner. Heard learned counsel for the petitioner and the respondent Bank. A counter affidavit has been filed on behalf of the respondent Bank which is placed on record. It appears from the pleadings on record that soon after excess payment was authorized/passed and made the petitioner made a representation to the authority of the Bank to advance her a sum of Rs. 72,000/- (Seventy two thousand) for closure of books of account of the Bank on that particular day. The manner in which such representation was made has already been noticed by this Court. It is specific stand of the respondent Bank that on such request having been made by the petitioner, the officials of the Bank advanced her a sum of Rs. 72,000/- (Seventy two thousand) enabling her to complete the formalities of closure of books of account of Bank on that particular day. The respondent Bank came to the rescue of the petitioner on her request and assurance. Adjustment of an advance given to an employee, in my view, cannot be said to be a penalty as contemplated under Regulation 39 of the Regulation. Reliance placed on Section 28(2) of the Act, seems to be erroneous. Section 28(2) of the Act reads as under:- “ The Chairman of a RRB and every Officer of the Central Government or State Government or an Officer of the Reserve Bank ( or 5 the National Bank) or the Sponsor Bank and every Officer or other Employee of a RRB shall be indemnified by such Bank against all losses and expenses incurred by him in, or in relation to the discharge of his duties except such as have been caused by his own willful act or default.” From the pleadings on record, this much is evident that the petitioner while passing the cheque completely overlooked the balance of amount existing in the account. It appears she fed Rs. 8,000/- (Eight thousand) only in the computer while authorizing payment for a sum of Rs. 80,000/- (Eighty thousand). In this fact situation, in my view, reliance on the provision of Section 28(2) of the Act is completely misplaced. As I have already noticed a request was made by the petitioner seeking advance for adjustment of the excess amount paid against the cheque and the bank officials immediately responded to her request and advanced her a sum of Rs. 72,000/- (Seventy two thousand) on her assurance for assimilation of account on that particular day. Petitioner represented in unambiguous terms that in case the amount is not realized the advance amount shall be paid back by her to the Bank. The Bank is only insisting on the petitioner to live up to the said representation. Notices served on petitioner before passing the impugned order are already on record. It appears therefrom that adequate opportunity to pay back the amount advanced to her on request was given before passing the impugned order. In these facts situation, the impugned order came to be passed. Mr. Dixit learned counsel for the petitioner at this stage submits that petitioner is a cancer patient and the instalment fixed under the impugned order would be harsh and the respondent Bank may be 6 directed to split the remaining amount to be realized in small instalments. It is submitted that a sum of Rs. 24,000/- (Twenty four thousand) has already been realized pursuant to the impugned order. Mr. Parbat, learned counsel for the respondent, submits that if that be so then the Bank would not be opposed to fixing small instalments. Considering the ailment with which the petitioner is suffering, this Court, in the particular facts of the case, directs that the remaining amount to be realized shall be split in ten equal instalments and/or realized before the petitioner superannuates. On a consideration of the aforesaid facts appearing from the record and in view of discussions made above, this Court is inclined not to invoke its extra ordinary writ jurisdiction in the matter to quash the impugned communication contained in Annexure-15. With the above noted observation(s), the application is dismissed. Sym ( Kishore K. Mandal, J. )