WP(C) 2964/2006 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. K.N. Choudhury, learned senior counsel for the petitioner. Also heard Mr. N. C. Das, learned senior counsel who represents the respondent No. 1, the C entral Bank of India (hereinafter referred to as the CBI ). Respondent No.4 Kam alakhya Das has chosen not to participate in the present proceeding. 2. The petitioner, who was functioning as the Head Cashier during the month of August, 2001 in the Mukalmua Branch of the CBI had filed the present writ pe tition seeking, inter alia, to quash the memo dated 30.1.04 (Annexure-13) whereb y the disciplinary authority of the Bank proposed to inflict certain punishments on the petitioner on the basis of the disciplinary proceeding initiated against him. At the time of filing the writ petition in the year 2006, it is claimed by the petitioner that the final punishment order dated 16.2.04 was not communicat ed to the writ petitioner but this claim is disputed. The said punishment order is annexed as Annexure-4 to the counter affidavit filed on behalf of the CBI. The petitioner challenges the said punishment order dated 16.2.04 by con tending that the punishment order is based purportedly on the finding given in t he enquiry dated 19.11.03 but it is contended that although an adverse finding a gainst the writ petitioner has been recorded but there is no evidence to reach s uch a finding and accordingly the punishment order inflicted on the basis of suc h perverse enquiry finding is unsustainable in law. 3. It may be relevant to take into account that the Bank’s Branch at Mukalm ua of the CBI was a small establishment which was functioning with respondent No .4 Kamalakhya Das as the Branch Manager and the writ petitioner as the Cashier a nd the responsibilities of the said Branch of the Bank were shared by the writ p etitioner and the respondent No. 4, as was needed during the relevant period in the year 2001. 4. The issues raised in this case arose out of a letter dated 18.1.02 sent by respondent No.4 as the Branch Manager of Mukalmua Branch to the Regional Offi ce of the Bank making certain allegations against the writ petitioner. It was al leged that a sum of Rs.20,000/-, which was collected for partial discharge of a loan taken by one Basanta Haloi (hereinafter referred to as loanee ), was not credited in the loan account and that the writ petitioner as the Cashier acknowl edged the receipt of the said sum of Rs. 20,000/- by putting his signature on a letter pad of the Bank. 5. Thereafter a memorandum dated 3.9.02 was issued to the petitioner by the disciplinary authority of the Bank alleging as follows:- Attention of Sri Bipul Chandra Deka, H/C’E’ of Mirza Branch is invited to the f act that while working at Magdi (Mukalmua) Branch Sri Deka handed over and ackno wledgement receipt of Rs.20,000/- signed by himself on dt. 17.8.2002 to Sri Basa nta Haloi as the lumpsum payment in loan a/c of the said Sri Basanta Haloi and t he same amount was kept in Suspense A/c. It is found from the records that on 17 .8.02 there is no such credit in Suspense Account for Rs.20,000.00. Mr Balen Dek a, Proprietor of M/S B.D. Enterprises who issued the cheque No.786273 dt 17.8.02 has confessed in his written statement that you have insisted to issue the cheq ue favouring self for Rs.20,000/- against part payment of loan outstanding in th e name of Sri Basanta Haloi. But, the amount of the cheque for Rs.20,000.00 was not credited in the loan a/c of Mr Basanta Haloi. It is also observed from your written statement dt 15.03.02 that when th e Cheque was paid on 18.8.02 you were absent in the office. But, it is found fro m the Muster Rule you were present on that day. The above deliberate acts of omissions and commissions on the part of Sr i Bipul Ch. Deka amounts to ’GROSS MISCONDUCT under Clause 5(d) and punishment under clause 6 of the Memorandum of Settlement Date 10th April, 2002 on Discipli nary Action Procedure for workmen. 6. The petitioner in his reply dated 17.9.02 totally denied the allegations and stated that he advised Balen Deka, the relative of the loanee, to issue a c heque with bonafide intention and that on the next day i.e. 18.8.01 he had writt en an acknowledgement for a sum of Rs. 20,000/- on the Bank’s letterhead on inst ruction of the Branch Manager of the Bank. The said receipt was to be co-signed with a joint seal of the Branch Manager as well as the petitioner and the petiti oner put his signature and handed over the said receipt to the Branch Manager as he was sent out on an errand by the Branch Manager soon after his arrival at th e Bank Branch on 18.8.01 to proceed to the Circle Office at Mukalmua for some of ficial work. He also claimed that he had no role at all in clearing the cheque of Balen Deka issued to the credit of the loanee’s account nor he had received any payment wit h regard to the said cheque and the entire process of passing the cheque and rec eiving the payment in cash and not crediting the amount to the account of the lo anee, which took place on 18.8.01, were done by the Branch Manager himself, whil e the writ petitioner was kept out of the office by the Branch Manager himself w ho sent the writ petitioner out of office on an errand of the Bank. 7. On not being satisfied with the reply furnished, a chargesheet dated 8.5 .03 was issued by the disciplinary authority to the petitioner containing the fo llowing two charges :- 1. One cheque No. 786273 dtd. 17.08.2002 of Rs. 20,000/- drawn by Sri Balen Dek a, Prop of Ms. B.D. Enterprise on his Current Account as self or bearer with two signatures on its back, as advised by Sri Bipul Ch. Deka, the then Head Cashie r ’E’ of Mukalmua branch was handed over to him at the Police Station on 17.8.20 01 evening after Bank’s working Hours towards part payment of the outstanding lo an a/c of Sri Basanta Haloi alongwith an undertaking of the borrower to repay th e loan by 31.03.2002 without any accounting in the Bank’s books. But an entry of Rs.20,000/- was made in the outer column of the ledger folio No.29 of the accou nt, by Sri Deka in his own hand writing under the head intt. Kept in Memorandum and arrived at the net balance without accounting Rs.20,000/- in the Bank’s book s of accounts. It was evident from the records that Sri Bipul Ch Deka advised to the Cu rrent A/c holder of M/S B.D. Enterprise, Prop. Sri Balen Deka on 17.08.2001 afte r the Banking hours at the Police Station to draw self/bearer cheque and put two signatures on its back with ulterior motive and mala fide intention to eacash t he cheque for Rs.20000/- on 18.08.2001. Sri Basanta Haloi (Borrower) has stated in writing that the cheque of Rs .20000/- drawn self or bearer in Current a/c of M/s B.D. Enterprise by the accou nt holder, his relative was given to Sri Bipul Che Deka, the then Head Cashier ’ E’ of Mukalmua branch at the Police Station on 17.08.2001 evening towards part p ayment of the dues of the said loan a/c. 2. On 22.08.2001, the borrower and the drawer of the cheque had came to the Bank to receive the acknowledgement receipt of Rs.20000/- towards payment of lo an amount in the said IRDP a/c of Basanta Haloi. It was evident that Sri Bipul D eka had sufficient time to prepare the letter dated 17.08.01 acknowledging recei pt of Rs.20,000/- as lump sum payment kept in suspense account, on the Bank’s le tter head pad and hand over the same to the borrower and shown them the ledger f olio about the credit of the loan amount of Rs.20000/- which was written by Sri Bipul Ch Deka in his own hand writing outer column of the ledger folio with lala fide intention and the balance net of the amount indicating recovery of the amou nt but without any supporting voucher. The above acts of ulterior motive and malafide intention on the part of Sri Deka is unbecoming of a Bank Employee which tantamounts to Gross Misconduct under Clause 5(j) of Disciplinary Action Procedure for workmen. 8. Eventually an enquiry was conducted into the charges and the Enquiry Off icer gave his enquiry finding dated 19.11.03 (Annexure-7) holding that both the charges levelled against the petitioner have been proved during the enquiry. 9. The disciplinary authority thereafter passed an order dated 30.1.04 (Ann exure-13) proposing to inflict the following two penalties against the writ peti tioner :- Charge No.1 Reduction by two stages in time scale of pay for a period of six years, with fu rther direction that the employee will not earn increments of his pay during the period of such reduction and on expiry of such period the reduction will have t he effect of postponing the future increments of pay under Clause 6(e) of Disci plinary Action Procedure for workmen dated 10.04.2002. Charge No.2 Special pay withdrawn for a period of three years under Clause 6(g) of Discipl inary Action Procedure for Workmen dated 10.04.2002. 10. As already noticed the final penalty order as proposed above was passed against the petitioner on 16.2.04 and although there is controversy as to wheth er the said penalty order was actually served on the petitioner prior to filing of the writ petition, the challenge in the instant proceeding is also being made to the final penalty order dated 16.2.04. 11. Mr. K.N. Choudhury, learned senior counsel representing the petitioner h as drawn attention of the Court to the enquiry finding dated 19.11.03 and conten ds that the Enquiry Officer himself has noted that the cheque in question was in police custody on the night of 17.8.01 and that the defence witness Prafulla Ba rman who was the then Manager of UCO Bank brought the cheque in question from po lice custody on 18.8.01 and payment on the said cheque was made on 18.8.01 by th e Branch Manager (respondent No.4). The learned counsel has also referred to the management witness Lahit Ch andra Kalita, the Bank’s Manager who replaced the respondent No.4 Kamalakhya Das in the Bank. From Lahit Chandra Kalita’s deposition it is pointed out that the concerned cheque was passed by the respondent No.4 the Branch Manager on 18.8.0 1 and the signatory of the cash payment register on 18.8.01 was also the Branch Manager Kamalakhya Das. It is also pointed out by the learned counsel that it cl early emerged during cross examination of the said management witness that the p ayment in question was made by the respondent No.4 Kamalakhya Das, the then Bran ch Manager. The learned counsel has also pointed out from the deposition of the Bank ’s witness Lahit Chandra Kalita that the payment on 18.8.01 with regard to the c heque in question was made by respondent No. 4 Kamalakhya Das and hand writing o f all the entries in the Cash Payment Register on 18.8.01 were that of Kamalakhy a Das only. 12. By referring to the aforesaid deposition it is contended on behalf of th e petitioner that on 18.8.01 the writ petitioner soon after putting his signatur e in the Attendance Register of the Bank was sent out on an errand by the Branch Manager (respondent No.4) and in the absence of the writ petitioner, the Branch Manager did all the transactions including the works of the Cashier of the Bank on 18.8.01 and the writ petitioner had nothing to do with either encashment of the cheque issued by Balen Deka (relative of the loanee) to credit the account o f the loanee nor he had any role in not crediting the cash drawn into the loane e’s account. 13. The learned counsel has also referred to the letter dated 13.5.03 (Annex ure-10) written by one Prafulla Barman,the Branch Manager of UCO Bank, who perso nally knew of all the happenings, addressed to the disciplinary authority of Cen tral Bank of India wherein it was clearly indicated that it was the Branch Manag er Mr Kamalakhya Das(respondent No.4) who was working at the cash counter of the Bank on 18.8.01 and it was as per the request of Mr Kamalakhya Das, Mr Prafulla Barman brought the cheque from the police station. It was also acknowledged by Mr Prafulla Barman in his letter dated 13.5.03 that he received payment of Rs.20 ,000/- from the Branch Manager Kamalakhya Das and as per the request of the Bran ch Manager he handed over the said sum of Rs.20,000/- to the Mukalmua Police and that the writ petitioner had no role either in clearing the cheque or taking o ut the money which was to be credited in the account of the loanee Basanta Haloi . 14. The learned counsel also contends that the disciplinary proceeding drawn against the writ petitioner was motivated by extraneous consideration inasmuch as the disciplinary authority despite receiving the letter dated 13.5.03 written by Prafulla Barman, the Branch Manager of UCO Bank, proceeded to conduct the en quiry. The denial by the disciplinary authority of receipt of the letter dated 1 3.5.03 is also cited as an instance of bias of the disciplinary authority as it is contended by Shri K.N. Choudhury, learned senior counsel that a Demand Draft of Rs.20,000/- was prepared under the direction of respondent No.2 (the discipli nary authority) in favour of the term loan account of Basanta Haloi. It is furth er pointed out that the draft form for purchase of the draft has also been endor sed by the disciplinary authority of the Bank and since the disciplinary authori ty summoned Prafulla Barman, who wrote the letter dated 13.5.03, for the purpose of preparing the demand draft for depositing in the loanee’s account and there fore it is contended that the denial of receipt of letter dated 13.5.03 is a dou btful claim and such denial indicates the biased mind of the disciplinary author ity. 15. It is further pointed out on behalf of the petitioner that the Bank had also proceeded to punish the then Branch Manager (respondent No.4) with regard t o the charge made against the writ petitioner and since the charge relates to si ngle transaction, there cannot be two guilty persons as no connivance is alleged between the writ petitioner and the Branch Manager with regard to the charge le velled against them. 16. Appearing for the respondent Central Bank of India Mr NC Das, learned se nior counsel submits that the writ petitioner has not availed of the remedy of a ppeal before the appellate authority in pursuant to the impugned punishment orde r dated 16.2.04 and as such the present writ petition ought not to be entertaine d by the writ court. It is further contended by Mr Das that the writ petitioner has been give n adequate opportunity to defend the charges made against him and since all the procedural formalities have been complied with, the present writ petition is not liable to be entertained by the writ court which cannot sit as an appellate aut hority with regard to a disciplinary matter. 17. Mr KN Choudhury, learned senior counsel responding to the arguments con tends that since the final punishment order dated 16.2.04 was never served on th e writ petitioner, the writ petitioner could not have filed an appeal and accord ingly availability of an alternative remedy under these circumstances would hard ly be an adequate ground for refusing justice to the writ petitioner by this Cou rt. 18. The learned counsel also submits that it is not a case of some evidence being available to prove the guilt of the writ petitioner but the present is a c ase of no evidence or rather a case of availability of evidence which clearly es tablish the innocence of the writ petitioner and under such circumstances interf erence of the writ court would always be justified since the finding reached by the enquiry officer is perverse because of no evidence and punishment inflicted by basing the charge on such perverse enquiry finding cannot be sustained in law . 19. In support of the contention made that interference is called for in the present case, the learned counsel for the petitioner refers to the Supreme Cour t decision in (Bhagat Ram vs. State of Himachal Pradesh) reported in 1983 2SCC 442 where the Supreme Court opined that while the High Court does not function a s an appellate Court over the actions of disciplinary authority but in a case w here the findings are utterly perverse and the case is not supported by any evid ence, the writ court would be fully justified to intervene with the enquiry find ing. 20. From the records which have been made available for this court’s perusal it is clear that the evidence adduced through the management witnesses clearly reveal the complicity of the Branch Manager (respondent No.4) with regard to the charge made against the writ petitioner and if it is the Branch Manager who had cleared the cheque by functioning as the Bank’s cashier on 18.8.01 in the absen ce of the writ petitioner, and if it is the Branch Manager who had handed over t he cheque amount of Rs.20,000/- Prafulla Braman, Manager of UCO Bank for handing over the money to the police, it is not at all clear as to how the petitioner c ould be found guilty of the charges made against him. The petitioner had undoubtedly put his signature as a co-signatory in the receip t meant to be issued to the loanee but the Branch Manager being the other co-sig natory and having had a hand in the entire transaction, never put his signature on the said receipt and taking advantage of the absence of the writ petitioner f rom the bank by sending him out on an official errand, respondent No.4 functione d as a cashier of the bank and did the entire mischief. Thereafter he tried to p ut the blame on the writ petitioner by using the receipt signed only by the writ petitioner who entrusted it with respondent No. 4 for his second signature, as the petitioner had to go out of the bank on 18.8.01 on an errand given by the re spondent No.4 himself. The letter dated 13.5.03 of Prafulla Barman, the Manager of UCO Bank, wh o was introduced as a defence witness, clearly reveals the culpability of the Br anch Manager and pointed unwaveringly to the innocence of the writ petitioner an d despite absence of any evidence to connect the writ petitioner with the charge of misconduct, the enquiry officer without any substantive evidence recorded an adverse finding against the writ petitioner. The disciplinary authority too without any appropriate application of mi nd to the enquiry report merely endorsed the enquiry report and accepted the sam e and thereafter proceeded to inflict the punishment on the writ petitioner on t he basis of such perverse enquiry findings. 21. This was clearly not warranted on the basis of the materials available a nd it appears that ignoring the relevant materials which shows the innocence of the petitioner and without any evidence to connect the petitioner with the offen ce charged, the impugned punishments have been inflicted. I am of the considered opinion that the guilt finding recorded against the writ petitioner in the enqu iry report dated 19.11.03 are based on no evidence. I am also of the opinion tha t the enquiry officer ignored the material evidence indicating the innocence of the writ petitioner. Accordingly the enquiry finding dated 19.11.03 is held to b e unsustainable in law. 22. As this court held that the enquiry finding dated 19.11.03 is vitiated, the punishment inflicted on the basis of such vitiated enquiry finding too is no t sustainable. 23. Before parting, it may be noticed that although there may be an alternat e appellate remedy available to the writ petitioner, in view of the conclusion r eached by this court about the perversity of the enquiry findings, it is conside red appropriate not to relegate the petitioner to the appellate authority since the present petition is being considered by the court on merit. 24. Accordingly this writ petition stands allowed and the impugned punishmen t order dated 16.2.04 is set aside and quashed.