CHAMPAK BORTHAKUR vs STATE BANK OF INDIA and ORS

Heard Mr. P. Pathak, the learned senior counsel appearing for the petitioner. The respondent State Bank of India (SBI) and their officers are

represented by Mr. S.S. Sharma, the learned senior counsel.

The petitioner is a former Senior Assistant of the Jorhat Branch of the SBI and the challenge here is to the order of removal from service with

superannuation benefits, passed on 26.5.2009 (Annexure-13), by the disciplinary authority of the SBI. The resultant Appeal was dismissed on

28.8.2009 (Annexure-14), by the Appellate Authority and this order is also challenged by the delinquent.

The disciplinary proceeding was initiated against the Bank employee with the show cause notice dated 7.7.2008 (Annexure-4), where, the

following statement of allegations were leveled against the delinquent:

Allegation - I

On 29.12.2007, you have received a sum of Rs.89,500/- for crediting the amount to Savings Bank Account No.10253821649 of

Canteen Store Deptt. Fund Acct. No.03 MGAR and you have handed over the counterfoil under your signature during normal

course of business. But you did not account for the amount in the books of the Bank and did not deposit the amount into the

customer?s account on the same day. You hve deposited the said amount into SB account No.10253821640 of Canteen Store

Deptt. Fund Acct. No.03 MGAR on 01-01-2008. Thus, you have misappropriated the above money with an ulterior motive, as the

amount was not account for in the bank''s books on the day of deposit by the depositor. Thus you had misused the power delegated

to you by the Bank as Single Widow Operator.

Allegation - II

On 11-01-2008, you have received Rs.1,24,700/- for crediting the amount to Savings Bank Account No.10253821649 of

Canteen Store Deptt. Fund Acct. No.03 MGAR you have handed over the counterfoil under your signature during normal course of

the business. But you have no credited the amount to the account on the same day. You have deposited the said amount to the

customer''s account on 06-03-2008 only when the depositor complained and your misdeed was exposed. Thus, you have

misappropriated the above money with an ulterior motive, as the amount was not account for in the bank''s book on the day of

deposit by the depositor. Thus you had, misused the power delegated to you by the Bank as Single Window Operator.

By your above acts, you have violated the laid down institutions of the Bank and acted in a manner which is not only prejudicial to

the interest of the Bank, but have also tarnished the image of the Bank before public, the Bank customer in general and the depositor

Canteen Store Deptt. Fund Acct. No.03 MGAR in particular. Such deliberate acts of dishonesty with ulterior motive of yours render

your liable for initiation of disciplinary action.

These acts of commission on your part, if proved, would amount to gross misconduct under the provision of Para-5(d) and para 5

(j) of Memorandum of Settlement of Disciplinary Action and Procedure for Workmen Staff dated 10-04-2002. You are, therefore,

advised to show cause within 7 (seven) days form the receipt of this memorandum as to why disciplinary action should not be initiated

against you. In case you fail to submit your explanation within stipulated time, it will be construed that you have no explanation to offer

and accepted the charges as correct and further necessary action would be taken without any further reference to you.

Meanwhile, please return the duplicate of his memorandum duly acknowledged by you under your full signature with date in token

of having received the original .................................

The temporary misappropriation of money to be deposited in the account of the customer, was found to be a gross misconduct and accordingly,

explanation was called from the delinquent on the above allegations. In his response dated 16.7.2008 (Annexure-6), the petitioner simply denied

the charges and accordingly an enquiry was ordered into the allegations.

The delinquent engaged a defence Assistant and participated in the enquiry and he was afforded due opportunity to defend the charges. The

Inquiry Officer assessed the evidence on record and in reference to the first allegation, noted that the counterfoil for Rs.89,500/-, dated

29.12.2007, was signed by the bank employee but the money was not deposited on the same day in the customer''s account (No.10253821649).

Eventually, the amount was reflected in the customer''s account after three days on 2.1.2008, through payment register, signed by the delinquent.

In so far as the allegation No.2 is concerned, Rs.1,24,700/- was received on 11.1.2008 by the Bank employee, for the same account holder

but this money was withheld from the customer''s account. Eventually, when the account holder made a written complaint on 4.3.2008 for the

missing sum, the delinquent arranged to deposit the amount on 6.3.2008, in the concerned Bank account.

The Inquiry Officer referred to the documentary evidence and noted that the delinquent had admitted to the charges under his letter dated

11.3.2008 and the two subsequent letters dated 31.3.2008 and 8.4.2008. On due evaluation of all materials, the charges were declared to have

been proved on 26.12.2008 (Annexure-10), by the Inquiry Officer.

The disciplinary authority considered the inquiry report and agreed with the findings. He forwarded the report and called for the response of the

delinquent, under his letter dated 29.12.2008 (Annexure-11). The reply dated 10.1.2009 (Annexure-12), being relevant is extracted here-in-

below:

......................

I have nothing to say against the findings of the enquiry. I have also confessed my mistakes vide my letters dated 08.03.2008, 31.03.2008 and

08.04.2008 with a view that my fate will be decided without the disciplinary proceedings.

......................"".

As can be seen from the above response, the charges were admitted by the delinquent. They were also proved on the basis of the documentary

evidence. Considering all the circumstances, the SBI''s disciplinary authority inflicted the penalty of removal from service with superannuation

benefits, under the impugned order dated 26.5.2009 (Annexure-13). This order was up held by the Appellate authority on 28.8.2009 (Annexure-

14), with the rejection of the Appeal. The impugned removal order is quoted here-in-below for ready reference:

......................

Removed from service with superannuation benefits (i.e. pension and/or provident fund and gratuity) as would be due otherwise (under the Rules

or Regulations prevailing at the relevant time) and without disqualification from future employment.

......................"".

Before proceeding any further, it would be appropriate to note that earlier, the delinquent had filed the WP(C) No.5436/2009 but the same

was withdrawn on 21.7.2010 (Annexure-15), with liberty to re-approach the Court.

Consistent with the defence strategy in the disciplinary proceeding, the leaned senior counsel for the petitioner, Mr. P. Pathak does not

seriously challenge the enquiry findings. However, the punishment for the Bank employee is projected to be harsh and disproportionate. Mr.

Pathak further points out that although the punishment of removal from service with superannuation benefits such as pension, provident fund and

gratuity was ordered, the delinquent has not received anything by way of superannuation benefits, since his removal on 26.5.2009.

On the other hand, the learned senior counsel Mr. S.S. Sharma points out that the delinquent as the Senior Assistant at the Jorhat Branch of

the SBI had misappropriated money of the account holder and such embezzlement of money by a Bank employee can hardly be treated leniently.

He reads the counter affidavit filed by the SBI on 18.7.2011 to highlight that as a custodian of public money, the delinquent must serve with

honesty and responsibility. Mr. Sharma further submits that the Bank employees occupy position of trust and therefore, they are expected to

display greater degree of integrity in dealing with the customers'' money. Referring to the serious charge of misappropriation, without depositing the

money in the customer''s account, the SBI lawyer submits that the punishment of removal was the deserved penalty for the delinquent.

In so far as the specific allegations are concerned, the money were eventually deposited in the account of the customer and therefore, it can be

described as a case of temporary misappropriation. But a Bank employee discharges fiduciary responsibilities and is expected to be honest in all

his dealings with the customer. Even with temporary misappropriation, the confidence and trust of the account holder in the Bank will be diminished

and this cannot be taken lightly by the employer, whose functions depends on the inherent trust of the account holders.

It is also significant to note that in so far as the 2nd allegation is concerned, the misappropriate amount (Rs.1,24,000/-) was deposited only

after the account holder filed complaint with the Bank and therefore, such squaring of account, does not in my view, diminish the misconduct by

any significant degree.

The Court finds that the respondents had afforded a fair opportunity to the delinquent to defend the charges and the conclusion was drawn not

only for the admission but also on the basis of documentary evidence, produced in the enquiry. The delinquent had engaged a defence Assistant

and had participated in the enquiry. As can be seen from his reply dated 10.1.2009 (Annexure-12), the charges are admitted and the conclusions

drawn in the enquiry, are not challenged by the bank employee.

In so far as the proportionality of the punishment is concerned, the Court has to bear in mind that the petitioner was a Bank employee,

entrusted with the money of the customers and was discharging a fiduciary responsibility. He was in a position of trust and could not have indulged

in even temporary misappropriation of the money, intended to be deposited in the customer''s account. In such cases, the loss of confidence of the

employer on the delinquent may not be irrational. The punishment of removal, in my perception is therefore not liable to be disturbed, as it does not

shock the judicial conscience of the Court. Accordingly, the challenge to the disciplinary action is found to be without any merits.

However, if the delinquent has not received his superannuation dues, as was ordered by the disciplinary authority, notwithstanding the dismissal

of this case, the respondents must ensure that all superannuation dues, in terms of the impugned order dated 26.5.2009 (Annexure-13), be

disbursed to the delinquent, within eight weeks from the date of receipt of this order. It is ordered accordingly.

With the above order, the case stands disposed of. No cost.