Chittesh Dasgupta v. United Bank Of India And 3 ORS

IN
THE
HIGH
COURT
OF
TRIPURA
A
G
A
R
T
A
L
A
W.P(C)
No.51
of
2012
Shri
Chittesh
Dasgupta,


 

 
   

  ! "#    # #$  % $!

 && %&'&  &&% "#    (&(Petitioner
-
V
e
r
s
u
s
-
1.
The
United
Bank
of
India,
)   $ *  + #  , -.////)   # )) +  #   #$ 01 ! *! 2'   2.
The
General
Manager
(Resource),
3$ - 4 5$  $ *  + # , -6.////)   #))+ #   3.
The
Chief
Regional
Manager,

3$ - 4 5$ '

  7$% 6.

//)   4.
The
Branch
Manager,
3$ - 4 5$  

  ! && 2 &&  

 "#        (((((&Respondents
 B
E
F
O
R
E
THE
HON'BLE
MR.
JUSTICE
S.
TALAPATRA
!  :
&%&'# %$8 &  !#$#  :
&'&7&*! $!

1%$8    &'&'0%$8    '4!   :
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23.11.2015
 :

$ 2$  "!!44 :

YES NO

√

[2] JUDGMENT
&
ORDER
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[4] ! 

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;

#C 1.
(a)
Tripura
R.O.
vide
memo
Nos.TRO/ADM/6919/2008
dated
14.02.08
and
TRO/ADM/6921/2008
dated
14.02.08
had
sanctioned
Rs.900/@
and
Rs.2193/@
against
TA/TE
Bill
submitted
by
you.
Out
of
the
said
sanctioned
amount
(Rs.3093/@
in
aggregate),
you
were
eligible
to
get
credit
of
Rs.1293/@
only
after
adjustment
of
Temporary
Advance
of
Rs.1800/@.
However,
on
27.02.08,
instead
of
crediting
the
said
Rs.1293/@,
you
had
posted
and
authorized
credit
entry
of
Rs.1,01,293/@
in
your
OD
account
No.340016
with
user@Id
'MGR'.
Subsequently,
with
the
aforesaid
excess
credit
of
Rs.1.00
lacs
in
his
OD
A/c
No.340016
you
had
withdrawn
Rs.1.05
lacs
on
01.03.08
vide
cheque
No.201210.
His
such
act
tantamount
to
misappropriation
of
Bank's
fund.

(b)
To
cover
up
the
aforesaid
fraudulent
transaction,
you
deliberately
suppressed
the
discrepancy
of
Rs.1.00
lac
between
the
Over
Draft
ledger
balance
and
Overdraft
Sub@head
in
G.L.
while
undertaking
day@end
process
on
27.02.08.

2.


(a)
On
06.02.08,
you
had
withdrawn
Rs.5000/@
in
cash
vide
cheque
No.201207
from
your
OD
account
No.340016
without
debiting
your
said
OD
account.

(b)
Further,
on
06.02.08,
a
credit
entry
of
Rs.55,000/@
was
posted
&
authorized
by
you
in
your
OD
account
No.340016
by
using
user@id
'MGR'
without
raising
any
corresponding
voucher.
The
above
fictitious
credit
entry
of
Rs.55000/@
was
done
with
an
intention
to
clear
two
cheques
vide
Nos.
201204
and
201205
on
19.02.2008
for
Rs.39094/@
and
Rs.




[5] favour
of
LICI
since
the
outstanding
balance
in
his
OD
account
was
not
sufficient
to
honour
the
aforesaid
cheques.

(c)
Day
end
process
on
06.02.08
was
also
done
by
you
suppressing
the
aforesaid
discrepancy
of
Rs.60,000/@
between
the
OD
ledger
balance
and
Overdraft
Sub@head
in
G.L.

(d)
Being
Manager
(Op)
of
the
Branch,
you
had
failed
to
ensure
daily
checking
of
vouchers,
Access
Log,
Manual
Journal,
Exceptional
Transaction
log
in
the
Branch.
3.
Being
Manager
(Op)
of
the
branch,
you
failed
to
maintain
Pass
Word
Register.
You
were
using
generic
user@Id
'MGR'
in
the
branch,
which
had
been
strictly
prohibited
in
terms
of
Bank's
circular
No.VIG/PC/8/OM@0211/06@07
dated
13.07.2006.

4.

You
had
submitted
false
Balance
Reconciliation
certificate
for
the
month
of
January,
08
and
February,
08
to
the
Regional
Office
despite
the
fact
that
OD
account
was
un@ reconciled
during
the
said
period.

Thus
you
had
misappropriated
the
bank's
fund
for
your
personal
gains
&
purpose
and
exposed
the
Bank
to
reputational
risk.

[6]
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[6] ;!8! 8  #

!#;! ! ;  !  $ 4 ! 8$  !# 0 #$&!#$A 1;##!01 ! $#  1  !1  ))&/ & //  4 0  !   #  #  ! 4$# 4 ! A 1 44  $ !  # $ # ! #  /)&/.& // & %#  $$  ! #$ 4  $ !  !$ # $ #

$C (I)
E.O.
in
Para@4
of
Page@4
of
his
report
has
contended
that
the
balance
in
OD
A/c.
was
inflated
by
you
to
the
extent
of
Rs.1.00
lac
on
27.02.2008.
This
particular
assertion
of
E.O.
does
not
have
any
backing
of
documents
and
deposition
which
have
come
on
record.
This
is
a
fact
that
you
had
withdrawn
Rs.1.05
lac
form
the
O/D
A/c.
but
the
charge
of
inflating
the
balance
has
not
been
proved.
In
Para@6
of
Page
@4
of
E.O's
Report,
E.O.
has
relied
upon
certain
assumptions
which
do
not
have
any
material
value
in
departmental
proceedings.
For
instance,
E.O.
is
telling
that
'he
(CSO)
should
verify
his
credit
entries
and
should
report
the
fictitious
entries,
if
any,
to
his
higher
officials'.

This
is
a
new
ingredient
of
allegation
which
has
been
initiated
by
E.O.
in
his
report.
This
observation
of
E.O.
is
outside
the
orbit
of
charge@sheet.

(II)
Same
is
the
position
in
respect
of
withdrawal
of
amount
of
Rs.5,000/@
and
passing
of
cheques
issued
in
favour
of
LICI.
You
have
never
denied
that
the
cheques
were
issued
by
you
and
that
money
was
paid
to
the
directed
payees.
You
have
however
disputed
that
the
balances
in
your
O/D
A/c.
were
inflated
by
you
because
all
such
entires
have
been
authorized
under
the
generic@ID
of
MGR.
The
technical
implication
is
that
the
said
ID
may
be
used
by
any
one
else
including
or
excluding
you.

In
other
words
there
is
an
atmosphere
of
cloud
and
uncertainty
and
the
benefit
of
it
should
go
to
you.
The
contention
of
E.O.
that
you
should
be
aware
of
all
fictitious
entries
is
very
unreliable
from
the
practical
point
of
view.




[7] (III)

You
have
expressed
your
gratefulness
to
E.O.
when
the
EO
says
that
the
charge
pertaining
to
use
of
generic
ID
has
not
been
proved.
You
have
extended
the
scope
of
such
finding
to
other
charges
also.
Teliamura
was
a
large
branch
having
brisk
banking
transactions.
Rightly
or
wrongly,
the
entire
operation
was
being
authorized
by
extensive
use
of
the
generic
'ID@MGR'.
E.O.
in
last
page
of
his
report
has
admitted
that
you
cannot
be
made
responsible
for
it
since
Senior
Manager
of
the
branch
was
not
also
aware
that
use
of
generic@ID
for
such
a
long
period
was
prohibited
by
the
Bank.
In
such
a
situation
a
question
normally
comes
as
to
who
is
exactly
responsible
for
what.

In
this
context,
it
can
never
be
concluded
that
you
are
responsible
for
alleged
inflation
of
balances.

(IV)
It
has
already
come
on
record
that
the
Balance@Reconciliation
Certificate
was
jointly
signed
by
you
and
the
Senior
Manager
but
it
has
never
been
proved
that
the
certificate
was
prepared
in
your
handwriting.
The
reporting
fact
was
prepared
in
the
handwriting
of
the
Senior
Manager
MW
in
course
of
Cross@ Examination
tactfully
avoided
the
issue
by
saying
that
the
handwriting
was
not
known
to
him.
Even
in
this
context
it
can
be
argued
that
the
charge
against
you
is
not
proved
beyond
doubt.

(V)
E.O.
has
tried
to
put
on
record
that
deposit
of
money
by
you
is
an
acceptance
of
the
responsibility
of
misappropriation.

You
have
thoroughly
contradicted
this
particular
contention
on
the
following
grounds:
(a)
In
several
cases
you
have
not
passed
the
instruments.

(b)
In
all
cases
the
entries
have
been
authorized
by
generic
ID@MGR
which
is
free
for
all.

(c)
You
received
the
money
but
the
allegation
of
inflation
of
balance
by
you
has
not
been
proved.

(d)
When
in
the
process
of
reconciliation
the
irregularities
surfaced,
you
immediately
deposited
the
money.
It
is
replenishment
of
fund
and
not
misappropriation.




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 $ 0 $! $C D1(a)
It
is
observed
from
ME
23
(MEMO
No.TRO/ADM/6919/2008
dated
14.02.2008
and
TRO/ADM/6921/2008
dated
14.02.2008)
that
vide
the
said
sanction,
the
Dy.
Regional
Manager,
Tripura
Regional
Office
had
sanctioned
amounts
of
Rs.900/@
and
Rs.2193/@
respectively
against
the
TA
Bills
submitted
by
you.
It
is
observed
from
ME
27
(credit
voucher
dated
27.02.2008)
that
the
said
voucher
was
prepared
for
Rs.1293/
for
credit
to
your
O.D.
account
No.340016
after
adjusting
the
temporary
advance
of
Rs.1800/@
out
of
the
total
payable
amount
of
Rs.3093/.
It
is
observed
from
ME
17
(statement
of
account
of
your
O.D.
account
No.340016)
that
on
27.02.

2008
(year
wrongly
mentioned
5708)
an
amount
of
Rs.101293/@
has
been
credited
to
your
said
O.D.
account.
It
is
observed
from
page
104
of
ME
13
(transaction
log
for
27.02.2008)
that
the
G.L.
head
of
O.D.
account
was
credited
by
Rs.1293.
It
is
found
from
ME
14
(certificate
dated
29.11.2008
of
the
Branch
Manager)
that
you
had
checked
and
signed
the
Daily
Rough
Cash
Book,
Sub@Cash
Book,
Clean
Cash
Book
of
the
Branch.
It
is
found
that
the
said
transaction
was
put
through
under
the
operator
as
well
as
supervisor
ID
of
'MGR'.
It
is
observed
from
the
Enquiry
Officer's
report
that
you
in
your
deposition
have
confirmed
having
withdrawn
Rs.1,05,000/@
from
his
O.D.
account
on
01.03.2008.




[9] 2.
It
is
observed
from
ME
8
(self
Cheque
No.
201207
dated
06.02.2008)
that
you
had
withdrawn
the
amount
of
Rs.5,000/@
from
O.D
account
No.340016;
whereas
it
is
found
from
ME
17
(statement
of
account)
that
there
has
not
been
any
debit
of
Rs.5,000/@
on
06.02.2008
from
your
O.D.
account.



It
is
found
from
ME
17
that
the
same
shows
the
credit
of
Rs.55,000/@
in
your
O.D.
account
No.340016
on
06.02.2008
by
cash.
However,
ME
6
(Cash
Receipt
Register)
does
not
reveal
receipt
of
any
cash
to
the
tune
of
Rs.55,000/@
for
credit
to
your
said
O.D.
account.
It
is
found
that
MEs
7
(Cheque
No.201204
for
Rs.30994/@
dated
21.01.2008
and
cheque
No.201205
for
Rs.31113/@
dated
29.01.2008,
both
drawn
in
favour
of
LICI)
were
passed
for
payment
from
your
said
O.D.
account
No.

340016
on
19.02.2008.
It
is
observed
that
before
credit
of
the
said
amount
of
Rs.55,000/@
on
06.02.2008,
the
balance
in
the
account
stood
at
Rs.339854.35
as
on
02.02.2008
against
the
permitted
limit
of
Rs.3,50,000/@.
Thus,
had
the
disputed
amount
of
Rs.55,000/@
not
been
credited
to
your
O.D.
account
on
06.02.2008,
the
payment
of
the
aforementioned
two
cheques
favouring
LICI
would
have
exceeded
the
permitted
limit
of
Rs.3.50
lac.
It
is
found
from
the
enquiry
report
that
the
said
cheques
were
passed
for
payment
by
you.
It
is
also
found
from
ME
14
that
the
checking
of
Sub@ cash
Book,
Rough
Cash
Book,
Clean
Cash
Book
and
General
Ledger
was
done
by
you
only.

It
is
observed
from
ME
16
(position
of
balances
of
accounts
of
Teliamura
Branch
for
the
month
of
February,
2008)
that
the
said
fictitious
entries
did
not
get
reflected
in
the
balance
reconciliation
statement
submitted
by
you
to
the
Regional
Office.
I
observe
that
you
in
your
submission
have
tried
to
take
resort
to
the
fact
that
since
the
aforesaid
fictitious
transactions
were
put
through
in
the
system
by
using
Generic
User
ID
'MGR'
you
cannot
be
made
responsible
for
such
entries.
In
my
opinion
the
fictitious
entries
had
benefited
you
only
and
you
were
the
Officer
who
had
checked
the
Sub@ Cash
Book,
Rough
Cash
Book,
Clean
Cash
Book
and
General
Ledger
of
the
Branch
on
06.02.2008.

Again
going
by
the
concept
on
preponderance
of
probability,
I
hold
you
guilty
of
having
put
through
the
said
fictitious
transactions."


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[11]

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$- $1$  ##  .&/ & // &   ! 4$  $  !  # ;!  1 0##  4& ! !#4 !#$!!#8$ !1

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#!$#  1 !1!#0#8$!C DI
observe
from
the
records
of
enquiry
that
vide
order
dated
10.03.2009,
the
Disciplinary
Authority
had
appointed
Sri
Rabindra
Nath
Gangopadhay
as
the
Enquiry
Officer
to
inquire
into
the
allegations
levelled
against
the
appellant
vide
charge
sheet
dated
09.01.2009.
The
enquiry
was
held
at
Bank's
Tripura
Regional
Office
on
20.04.2009
&
21.04.2009.
The
appellant
had
participated
in
the
enquiry
with
his
Defence
Representative.
I
also
observe
that
the
documents
placed
in
the
enquiry
were
handed
over
to
the
appellant/his
Defence
Representative
and
the
Defence
side
was
afforded
all
the
opportunities
to
defend
the
case
including
cross@examination
of
both
the
Management
Witnesses.

Thus,
having
been
notified
by
the
Disciplinary
Authority,
the
appellant
had
enough
time
in
his
hand
to
prepare
himself/his
Defence
Representative
for
defending
the
case.
Moreover,
it
is
observed
that
27
numbers
of
documents
were
produced
in
the
enquiry
as
Management
Exhibits
and
in
my
opinion,
the
period
of
one
day
is
sufficient
to
peruse
the
said
23
documents
for
preparation
of
defence.
In
fact,
the
Defence
side
had
also
produced
two
documents
as
Defence
Exhibits
which
goes
to
indicate
that
the
Defence
Side
had
thoroughly
perused
the
Management
Exhibits.
On
receipt
of
the
written
brief
dated
25.04.2009
of
the
Presiding
Officer,
the
Enquiry
Officer
had
forwarded
the
same
to
the
appellant
for
his
written
arguments
on
25.04.

2009
itself
and
the
Defence
Side
submitted
their
written
arguments
on
21.05.2009.

[12] oral
evidences
produced
in
the
enquiry
and
also
the
written
brief
of
the
Presenting
Officer
as
well
as
the
appellant/his
Defence
Representative.

Under
the
circumstances,
I
hold
that
the
enquiry
had
been
conducted
fully
observing
the
principle
of
natural
justice
and
at
every
stage
thereof,
the
appellant/his
Defence
Representative
had
been
afforded
the
opportunity
for
defending
the
case
and
I
also
observe
that
the
Defence
Side
has
availed
the
said
opportunity.
As
far
as
the
contention
of
the
appellant
in
regard
to
use
of
generic
password
is
concerned,
I
concur
with
the
observation
of
the
Disciplinary
Authority
that
the
fictitious
transactions
by
inflating
the
actual
amount
of
Rs.1293/@
to
Rs.

101293/@
for
credit
to
the
appellant's
account
and
those
dated
06.02.2008
which
were
put
through
by
using
generic
User
ID
'MGR'
had
benefited
the
appellant
only
and
the
appellant
was
the
Officer
who
had
checked
the
Sub@Cash
Book,
Rough
Cash
Book,
Clean
Cash
Book
and
General
Ledger
of
the
Branch
on
06.02.2008
and
that
on
the
basis
of
the
concept
on
preponderance
of
probability,
the
Disciplinary
Authority
has
held
the
appellant
guilty
of
having
put
through
the
fictitious
transactions.

In
my
opinion,
the
appellant's
contention
that
it
could
not
be
established
in
the
departmental
enquiry
that
he
had
out
through
the
transactions
through
user
ID
'MGR',
is
not
tenable;
since
the
circumstantial
evidences
coupled
with
preponderance
of
probability,
which
are
basic
facets
of
any
Departmental
Enquiry
are
sufficient
to
adjudge
as
to
whether
the
allegations
stood
established/not
established.

I
also
observe
that
the
Enquiry
Officer
has
held
allegation
No.

3
as
not
established
in
the
enquiry
and
the
Disciplinary
Authority
has
also
concurred
with
the
finding
of
the
Enquiry
Officer,
since
he
is
of
the
observation
that
it
is
the
duty
of
the
Branch
Manager
to
maintain
password
register
and
ensure
that
the
Generic
User
ID
'MGR'
is
not
used
by
anybody
in
the
Branch.
The
above
leads
me
to
arrive
at
the
observation
that
both
the
Enquiry
Officer
and
the
Disciplinary
Authority
have
applied
their
mind
fully
and
after
complete
and
thorough
analysis
of
the
evidences
produced,
depositions
made
in
the
enquiry
by
both
the
Management
Witnesses,
written
brief
of
the
Presenting
Officer
and
that
of
the
appellant,
the
Enquiry
Officer
has
the
allegations
Nos.1,2
&
4
as
established
and
allegation
No.

[13] established.

I
also
observe
that
the
Disciplinary
Authority
after
careful
observation
of
the
Enquiry
Report
along
with
the
proceedings
of
the
enquiry,
documents
produced
by
both
the
sides
and
also
the
submission
of
the
appellant
on
the
findings
of
the
Enquiry
Officer
has
imposed
the
penalty
of
'Compulsory
Retirement'
upon
the
appellant,
since
I
also
concur
with
the
observation
of
the
Disciplinary
Authority
that
instead
of
protecting
Bank's
interest,
the
appellant
had
rather
taken
advantage
of
his
high
position
in
the
branch
for
unlawful
financial
gains
and
by
such
acts,
the
appellant
has
proved
himself
unworthy
of
holding
a
responsible
position
in
the
Bank
and
also
that
the
Bank,
being
an
institution
dealing
with
public
money,
cannot
repose
confidence
on
the
appellant.

In
view
of
the
above
observation
and
considering
the
nature
and
gravity
of
the
misconduct
proved
in
the
properly
constituted
departmental
inquiry
against
Sri
Chittesh
Dasgupta,
I
do
not
find
any
cogent
reason
for
modification
of
the
quantum
of
punishment
imposed
upon
him
by
the
Disciplinary
Authority.
The
quantum
of
punishment
appears
to
be
appropriate,
proper
and
also
in
commensurate
with
the
gravity
of
the
misconduct.
I,
therefore,
affirm
the
punishment
of
'Compulsory
Retirement'
mentioned
under
Para@2
above,
as
imposed
upon
Sri
Chittesh
Dasgupta
by
the
Disciplinary
Authority."





[11]

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[14] "It
should
be
pertinent
to
mention
here
that
the
local
authority,
the
Enquiry
Officer,
Presenting
Officer
even
the
defence
assistant
given
an
understanding
to
the
petitioner
that
the
entire
proceeding
was
an
empty
formality
and
the
authority
would
not
taken
any
action
against
the
Delinquent
Officer
(petitioner)

as
they
had
understood
that
he
had
not
committed
any
offence.
They
advised
him
not
to
oppose
the
proceeding
and
then
and
then
only
the
Enquiry
Officer
would
recommend
in
favour
of
the
petitioner.
Accordingly,
the
petitioner
accepted
their
proposal
and
steps
though
he
could
not
digest
it.
The
petitioner
in
support
of
his
claim
like
to
draw
the
attention
of
the
High
Court
that
the
entire
departmental
proceeding
was
completed
within
24
hours."


  !#   !#  0 # # 1 - 01 !# * #

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1 #-$ 01 ! A 1 44  ! $$  $ #& !4 !     1   ! !#   4 44$ ! #0   1 ;

$ 0  $ 01 1  & 8 4 ! 1# 0!!! $ ;#!#1&5 !# $ ;! !# 0 0#8$ 01 !     Brajendranath
Vargava
vs.
Ramchandra
Kalshiwal$ (1998)
9
SCC
169# 8!# &!   !# #   1 ! $ ;!  4  $ # 4 !  *    4 5$ ;! ! 8#$ ! 4$ 4 !   *   ;

#! !  0B #!

$ ;!0  #;!# ## 4!#



[15] #$4 # $ ;#  14 # $ &541##  !!#8#$;!#  1& [13]

5
Syndicate
Bank
vs.
General
Secretary,
Syndicate
Bank
Staff
Association
and
another,
$ 
(2000)
5
SCC
65,
!  !# $$;;  ## !

4  B # # $C "13.
In

         
    


the
management
was
denied
by
the
Industrial
Tribunal
to
lead
evidence
in
support
of
the
impugned
order
of
dismissal.
It
was
not
disputed
that
the
request
was
made
before
the
closure
of
the
proceedings
before
the
Tribunal.
This
Court
held:

'A
domestic
inquiry
may
be
vitiated
either
for
non@compliance
of
rules
of
natural
justice
or
for
perversity.
Disciplinary
action
taken
on
the
basis
of
a
vitiated
inquiry
does
not
stand
on
a
better
footing
than
a
disciplinary
action
with
no
inquiry.
The
right
of
the
employer
to
adduce
evidence
in
both
the
situations
is
well
recognised.

So
the
employer
is
entitled
to
adduce
evidences,
for
the
first
time,
before
the
Tribunal
even
if
the
employer
had
held
no
inquiry
or
the
inquiry
held
by
the
employer
is
found
to
be
perverse.
14.
Two
principles
emerge
from
the
decisions
:
(1)
principles
of
natural
justice
and
duty
to
act
in
a
just,
fair
and
reasonable
manner
have
to
be
read
in
the
Certified
Standing
Orders
which
have
statutory
force.

These
can
be
applied
by
the
Labour
Court
and
the
Industrial
Tribunal
even
to
relations
between
the
manageme4nt
and
workman
though
based
on
contractual
obligations;
and
(2)
where
domestic
inquiry
was
not
held
or
it
was
vitiated
for
some
reason
the
Tribunal
or
Court
adjudicating
an
industrial
dispute
can
itself
go
into
the
question
raised
before
it
on
the
basis
of
the
evidence
and
other
material
on
record."

[16] [14]

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