WP(C) 8364/2004 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) B.K. Sharma, J The petitioner is aggrieved by imposition of major penalty of compulsory retirement from service pursuant to a departmental proceeding. The impugned ord er of penalty is dated 20.03.2003, followed by the appellate order dated 28-6-20 03, by which the appeal preferred by him against the order of compulsory retirem ent was rejected. 2. The petitioner while was serving as Internal Senior Auditor of the respo ndent bank at Liluah, Howrah, was placed under suspension by Annexure-I order da ted 4.8.2001. Thereafter, the Annexure-II charge sheet dated 18.5.2002 was issue d to him, leveling the charge of not discharging duties with utmost integrity, h onesty, devotion and diligence in terms of Regulation 3(1) read with Regulation 24 of PNB Officer / Employees’ (Conduct) Regulations, 1977. For a ready referen ce, the charge along with the statement of imputation of charge is reproduced be low :- PUNJAB NATIONAL BANK HUMAN RESOURCES DEVELOPMENT DIVISION HEAD OFFICE : NEW DELHI. ANNEXURE-I STATEMENT OF ARTICLE OF CHARGE AGAINST SHRI U.K. MILI, SR. INTERNAL AUDITOR (U/S ) PREV. BM, BO SARUPETA (ASSAM). Shri U.K. Mili, while working as Branch Manager BO : Sarupeta from 02.03.1998 to 01.10.1999 is alleged to have committed following irregularities / lapses :- ARTICLE -1 He received cash from 14 borrowers aggregating Rs. 46,790/- and issued letters t o Circle Officer, Sarupeta confirming adjustment of their accounts, but did not deposit the money, so collected, immediately with the Bank and thus misappropria ted bank’s funds. He deposited the amount only after it came to the knowledge of the Bank and was pointed out to him. He, thus, did not take all possible steps to ensure and protect the interests of the Bank and did not discharge his duties with utmost integrity, honesty, devot ion and diligence and committed misconduct in terms of Regulation 3 (1) read wit h Regulation 24 of PNB Officer Employees’ (Conduct) Regulations, 1977. Sd/- DY. GENERAL MANAGER(P) (DISCIPLINARY AUTHORITY ) PUNJAB NATIONAL BANK HUMAN RESOURCES DEVELOPMENT DIVISION HEAD OFFICE : NEW DELHI ANNEXURE-II STATEMENT OF IMPUTATION OF CHARGE IN SUPPORT OF ARTICLE OF CHARGE AGAINST SHRI U .K. MILI, SR. INTERNAL AUDITOR (U/S), PREV, BM, BO, SARUPETA (ASSAM) CHARGE -1 In the following borrowal accounts, Shri Mili received cash aggregating Rs. 46,7 90/- from the borrowers, but did not deposit the same immediately in the branch :- Account of (S/Shri) RC filed on Amount Received from the borrowe rs 1 Paresh Medhi 31.03.95 2000.00 2 Manoranjan Kalita 31.03.95 1000.00 3 Hemanta talukdar 29.11.95 9800.00 4 Krishna Das 25.11.95 1300.00 5 Mahendra Das 17.12.94 2000.00 6 Lohit Das 25.01.95 2200.00 7 Khagendra Nath Das 31.03.95 2500.00 8 Apurba Kalita 17.12.94 3000.00 9 Mahabir Das 15.01.96 500.00 10 Harihar Deka 25.01.95 1500.00 11 Dipak Das 25.03.98 2500.00 12 Khanin Talukdar 24.12.94 9000.00 13 Krishna Kt. Kalita 07.4.95 990.00 14 Narayan Karmakar RC not filed 8500.00 He deposited / returned the above referred amount of Rs. 46,790/-, so received b y him, to Shri Kamal Deka, Manager, BO, Sarupeta on 27.2.2000, when the matter o f non-deposit of cash was pointed out to him. He issued letters on various dates , addressed to Circle Officer, Sarupeta Circle confirming adjustment of accounts by 13 borrowers and also endorsed copies of such letters to the borrowers, but did not keep copies of the letters in Bank records. He, thus, misappropriated bank’s funds, recovered by him from the borrowers and deposited the same with the Bank only pointing out. Sd/- DY. GENERAL MANAGER(P) (DISCIPLINARY AUTHORITY) 3. In response to the said charge, the petitioner by his Annexure-III state ment of defence dated 19.6.2002. While broadly agreeing with the facts narrated in the charge, took the defence of keeping the amount at his residence inadverte ntly coupled with the fact that in the mean time he was transferred to New Delhi . After the charge sheet and the written statement of defence, the Disciplinary Authority decided to hold an enquiry relating to the charge leveled against the petitioner. Accordingly, the said authority appointed the Enquiry Officer and Pr esenting Officer. 4. In the enquiry, the petitioner duly participated in the enquiry, on conc lusion of which the Enquiry officer by his Annexure-VI enquiry report dated 31.1 0.2002, held the petitioner guilty of the charge. While appreciating the materia ls available on record, the Enquiry Officer observed in the Enquiry Report that the petitioner did not deposit the amount in question on his own but did so when the misappropriation was detected and he was directed to deposit the amount. Su ch deposit was when the aggrieved borrowers complaint that they were being haras sed by the authorities inspite of they having cleared the bank dues long back (d ocument No. ME-I). This fact was corroborated by witness No.5. 5. A copy of the enquiry report was furnished to the petitioner asking him to submit representation, if any, against the same. On receipt of the enquiry re port, the petitioner, by his Annexure-VIII representation dated 8.11.2002 dealt with the same repeating the same stand of denial of misappropriation of the amou nt. According to the petitioner, since the amount in question was later on depos ited, there was no misappropriation on his part and that the authority ought to have ignored the charge leveled against him. 6. On the basis of the materials on record including the enquiry report and the representation made by the petitioner, the Disciplinary Authority imposed t he penalty of compulsory retirement on the petitioner by the impugned order date d 23.1.2003 (Annexure-XIV). The Disciplinary Authority while appreciating the ch arge and the materials on record, observed that the petitioner did not exercise due care, devotion, honesty and integrity while performing his duties at the par ticular branch. 7. Being aggrieved by the aforesaid order of compulsory retirement, the pet itioner preferred an appeal to the departmental Appellate Authority, which howev er, was rejected by Annexure- XVIII dated 28.6.2003. Like that of the Disciplina ry Authority, the Appellate Authority also duly took note of the materials on re cord towards rejection of the plea of the petitioner raised in the appeal. 8. The respondents have filed their counter affidavit defending the impugne d orders. While doing so, it has also been brought on record that on two other e arlier occasions, the petitioner was taken up for departmental proceeding, pursu ant to which, he was imposed with the penalties of reduction in the time scale o f pay and censure. This particular plea has been raised dealing with the stateme nt made in the writ petition that the petitioner had an un-blemished service car eer. The earlier two departmental proceedings were also on chare of irregulariti es / illegalities in bank’s transactions as an Officer of the bank. It has been contended in the affidavit-in-opposition that the bank having lost confidence on the petitioner, there was nothing wrong in dispensing with his services by impo sing the penalty of compulsory retirement. 9. I have heard Mr. S.K. Medhi, learned counsel for the petitioner as well as Mr. P.N. Choudhury, learned counsel representing the respondent bank. 10. Mr. Medhi, learned counsel for the petitioner has argued that having reg ard to the facts and circumstances relating to the charge and the fact that ther e was no misappropriation of the amount, the penalty imposed was totally uncalle d for. On the other hand, Mr. P.N. Choudhury, learned counsel representing the r espondent bank, submits that it is immaterial as to whether there was temporary misappropriation of the amount. He submits that the real test is whether the pet itioner could show absolute integrity and devotion to duty. During the course of argument, he has also referred to the earlier conduct of the petitioner, so as to submit that in such circumstances, it was within the competence and jurisdict ion of the bank authority to dispense with the services of the petitioner by way of compulsory retirement. He further submits that in view of the lesser penalt y of compulsory retirement, the petitioner will be entitled to all retirement be nefits and thus, the Writ Court exercising its power under Article 226 of the Co nstitution of India, would be reluctant to interfere with the said penalty. 11. The charge leveled against the petitioner was admitted by him. The fact of the matter is that although the amount was collected by the petitioner but he did not deposit the same with the bank and kept the amount with him. He also di d not deposit the amount upon his transfer to Delhi. It was only when the matter was detected and the petitioner was informed of the same, he returned the amoun t to the bank. It is in this context, the plea of the respondent bank is that ha d the detection not been there, the petitioner would not have deposited the amou nt. 12. As an Officer of the bank, it was expected that the petitioner would dis charge his duties diligently with honesty and integrity. It was his bounden duty to deposit the amount he had collected but instead kept the same with himself f or over three months and it was only after such defalcation was detected he had deposited the amount with the bank. In such circumstances, it cannot be said tha t there was no misappropriation on the part of the petitioner. Further, it is im material as to whether there was misappropriation of the amount or there was tem porary misappropriation of the same. 13. The petitioner has not contended any procedural irregularity in the depa rtmental proceeding. On perusal of records also, I find that the proceeding was conducted in a fare manner giving reasonable opportunity to the petitioner to de fend his case. The charge having been admitted by the petitioner and taking note of the nature of the charge, it cannot be said that the penalty of compulsory r etirement imposed on him is grossly excessive requiring interference of this Cou rt. 14. At the time of filing of the writ petition, the petitioner was 54 years of age. Had he been in the service, he would have retired on attaining the age o f superannuation. 15. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly it is dismissed. There shall be no order as to costs.