Gaurisankar Chakraborty vs State Bank Of India And Ors

[1] Heard Mr. S. M. Chakraborty, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the petitioner. Also heard Mr. H. K. Bhowmik, learned counsel appearing for the bank-respondents.

[2] The brief facts of the case are as under:

[2.1] The petitioner in course of his service as Scale-II officer was dismissed for misappropriation of bank‟s money. After the dismissal order dated 12.06.2013, the petitioner had submitted a representation on 25.03.2014 to the bank authority to release the amount which were of his deposits on account of his service under various deposit schemes, which are indicated in the writ petition

[2.2] In the petition, it has been stated that out of fixed deposits, the petitioner is entitled to Rs. 10,57,812/-; Rs. 60,957.00/- out of his personal salary; Rs. 66,013/- out of fixed deposit and lastly, the terminal benefits, which the petitioner is entitled to due to his service.

[2.3] After receipt of the said representation dated 25.03.2014, the respondent-Bank had answered to the demand of the petitioner stating inter alia that the petitioner was not entitled to any amount. The said statement is also reflected at para-14 of the counter-affidavit filed by the respondent-bank. For the purpose of reference, the relevant portion is extracted hereunder:

"14. That, in reply to the averment as made in Para-11 of the writ petition, it is the humble submission of the respondents that as the dismissal of the petitioner was after due process of the inquiry and all opportunities were given during the inquiry to the petitioner to prove his innocence but ultimately he was found guilty and therefore, question of payment pending allowance and other dues such as CFP, Gratuity and leave salary does not arise and after dismissal such claim is no way can be termed his legitimate claim and therefore, does not withheld any payment rather he is no way entitled to get any further amount from the respondent-bank."

[3] Mr. Bhowmik, learned counsel for the respondent-bank in reply to a query from this Court has tried to persuade this Court by placing reliance upon Clause-4 relating to

„Payment of Gratuity‟, which is as under:

"(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years - (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease provided that the completion of continuous service of five years shall not be necessary where he termination of the employment of any employee is due to death or disablement.

Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority."

[4] Mr. Bhowmik, learned counsel for the respondent has drawn my attention to Section-6 which stipulates as follows:

"6. Notwithstanding anything contained in sub-section (1), (a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;(b) the gratuity payable to an employee may be wholly or partially forfeited."

[5] To a further query, Mr. Bhowmik, learned counsel has submitted a correspondence dated 22.11.2019 made by Assistant General Manager of the bank addressed to Mr. Harekrishna Bhowmik, learned counsel appearing for the bank-respondent, though, it has not been placed on record. I have taken note of the same i.e. the letter dated 22.11.2019, because of the fact that the said letter placed before this Court on the basis of the query made by this Court. The said letter dated 22.11.2019 is reproduced herein below:

Date : 22.11.2019

Shri Harekrishna Bhowmik,

Advocate,

High Court of Tripura,

Tripura Bar Association, Room No. 1,

Agartala.

Dear Sir,

Case No. WP(C) No. 46 of 2015 Shri Gouri Shankar Chakraborty Vs. SBI

With reference to your letter dated 14.01.2019, we have to advise that the conduct of the writ petitioner has exposed the Bank to incure a loss of Rs. 48.14 lakhs (Rupees forty eight lakhs fourteen thousand) which has been proved in the inquiry conducted against him. But till date, bank could appropriate Rs. 36.72 lakhs [Rupees thirty six lakhs seventy two thousand, (approx)] only. The remaining amount of Rs. 11,81,505/-(Rupees Eleven lakh eighty one thousand five hundred five) is yet to be recovered. Again, the money of the Bank is a public money, hence the question of interest on the entire loss amount of Rs. 48.14 lakhs is also involved.

In view of the aforesaid, we deny the contention of the writ petitioner that the Bank has not incure loss.

Yours faithfully,

Assistant General Manager."

[6] Mr. Bhowmik, learned counsel for the respondent-bank has further submitted that the petitioner himself vide his letter dated 30.12.2010 authorized the bank authority to recover the entire amount from various accounts and for credit to proper accounts. Mr. Bhowmik, learned counsel has also made reference to the relevant provisions prescribed for imposing different penalties under Section-2 relating to "Discipline and Appeal", wherein, the provision for dismissal of an employee charged for defalcation has been prescribed.

[7] Mr. Bhowmik, learned counsel for the respondent-bank has further submitted that the purpose of referring Section-2 relating to Discipline and Appeal is that the bank without prejudice to any other provisions contained in the rules, any one or more of the following penalties may be imposed on an officer, for an act of misconduct or for any other good and sufficient reason to be recorded in writing:

Minor penalties:

(a) Censure;

(b) Withholding of increments of pay with or without cumulative effect;

(c) Withholding of promotion;

(d) Recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Bank by negligence or breach of orders.

(e) Reduction to a lower stage in time-scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting the officer's pension.

Major Penalties:

(f) Save as provided for in (e) above reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the officer will earn increments to pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay;

(g) Reduction to a lower grade or post;

(h) Compulsory retirement;

(i) Removal from service;

(j) Dismissal."

[8] Keeping in view the aforesaid facts and relevant provisions embodied in the rules applicable to the employees of the bank, this Court is to decide whether the petitioner is entitled to the reliefs as prayed for in the writ petition i.e. to get back the money, which have been lying in different accounts concerning his name.

[9] Indisputably, the petitioner was dismissed from service as the charge framed against him was proved. The relevant portion of the dismissal order dated 12.06.2013 (Annexure-4 to the writ petition) is reproduced here-in-below:

"I, as Appointing Authority, have examined the entire matter vis-à-vis the lapses on the part of Shri Gaurishankar Chakraborty, MMGS-II and his statement of defence and observed that the irregularities committed by the CSO are serious in nature. He did not discharge his duties with utmost integrity, honesty, devotion and diligence and acted against the interest of Bank. He has defraud the Bank to the tune of Rs. 48.14 lacs and has displayed conduct which is unbecoming of an officer. His actions are in clear violation of Rule No. 50(1) and 50(4) of State Bank of India Officers' Services Rules applicable to him. Having considered the gravity of the lapses committed by Shri Gaurishankar Chakraborty, MMGS-II, in my capacity as Appointing Authority order that penalty of "Dismissal" in terms Rule No. 67(j) of SBIOSR, be inflicted upon Shri Chakraborty to meet the ends of Justice. The period of suspension to be treated as "not on duty".

[10] From the said order dated 12.06.2013, it is apparent that the bank authority imposed major penalty of dismissal upon the petitioner. It is further stated that the period of suspension will be treated as "not on duty". I have given my anxious thought to Rule-2 relating to imposing of penalty as stated above. Here, I find that under the head of minor penalties at Clause-D, it is stated that "recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Bank by negligence or breach of orders." which means that the bank may recover any amount from the salary of the delinquent employee. On cumulative reading of the said provision of Rule-67 relating to imposition of penalties and the dismissal order dated 12.06.2013, it reveals that the bank have preferred to pass an order of dismissal against the petitioner but not to impose any such penalty for recovery of the amount due to him but for the pecuniary loss caused to the bank by the negligent act of the delinquent employee.

[11] It is the prerogative of the bank authority which penalty is to be imposed. The bank wisdom is statutorily empowered to impose one or more penalty as embodied in Rule-67 for the reason that, Rule-67 clearly stipulates that without prejudice to any other provisions contained in these rules, any one or more of the penalties as embodied in the Rules as extracted above may be imposed upon an officer, for his/her act of misconduct, but, in the instant case, the bank authorities on their own wisdom has preferred to impose only one penalty i.e. the penalty of dismissal. No other penalties as prescribed in Rule-67 have been applied by the bank authority against the petitioner.

[12] In my considered view there was enough opportunity to the bank to impose more than one penalty upon the petitioner, if the bank would have felt that it was required for the interest of the bank, as I discussed earlier that the bank authorities on their own had not taken the recourse of imposing more than one penalty as embodied under Rule-67 of the Rules applicable to the bank employees.

[13] In regard to the contention of the bank that the petitioner cannot have any legitimate claim over the "deposits" he made in course of his service, this Court is of the opinion that since the competent authority of the bank had abstained from passing any order of forfeiture or penalty for recovery of the defrauded amount, they are now precluded from making such demand after his dismissal from service. Further, forfeiture only relates to gratuity amount, but, for such forfeiture also notice had to be served upon delinquent, thereby affording reasonable opportunity to such delinquent to raise his objection following the doctrine of fairness and fair play.

[14] Further, allegation No. 18 is that the petitioner has exposed the bank to incur a loss to the tune of Rs. 48.14 lacs. The Inquiry Authority has found that the entire defrauded amount was kept in the bank itself, though, in different fictitious accounts which are recoverable and as such the bank has not incurred any loss. The disciplinary authority in his finding has agreed with the said finding of the Inquiry Authority.

[15] More so, the disciplinary authority concurred the view of the Inquiry Authority that the bank has not incurred any loss because entire money was lying at different accounts of the bank itself which being identified were recoverable. Perhaps, this is the reason for which the Disciplinary Authority did not impose any penalty for recovery of the defrauded amount.

[16] If the bank wanted to forfeit the gratuity amount of the petitioner, then, it ought to have been mentioned in the order of dismissal. Further, if the bank wanted to recover any of the amounts due to the petitioner, then, the bank could have imposed such penalty in view of the Regulation-67 of Rule-2 relating to imposition of penalties, but the bank has not imposed such penalties for recovery of any amount from the petitioner. In furtherance thereof, the bank-respondents has failed to show any such provision that "dismissal" simplicitor would entail the bank to forfeit the entire amount the delinquent employee is entitled to get out of his service.

[17] Situated thus, I find force in the submission of Mr. S. M. Chakraborty, learned senior counsel appearing for the petitioner that when the dismissal order is passed in clear and unequivocal terms without imposing any such penalties other than the penalty of dismissal, now the bank has no right to pass any order of penalty for recovery of any amount due to the petitioner or forfeit any amount invested under various saving schemes by the petitioner. I re-iterate herein that total defalcated amount of Rs. 48.14 lakh was available in the bank itself which was found to be recoverable by the bank as those accounts were frozen by the bank as observed by the Inquiry Authority and concurred by the Disciplinary Authority while deciding the charge No. 18.

[18] On my considered opinion, when the bank has recovered Rs. 48.14 lakh kept in various accounts under factitious name and the disciplinary authority held that the bank has not incurred any loss, I find no reason to deprive the petitioner of providing service benefits for the period he served the bank.

[19] Accordingly, I direct the bank-respondent to release the full amount lying in the account of contributory Provident Fund, Gratuity and Leave Salary lying in the account of the petitioner and further direct to release/pay the full matured value of four numbers of fixed deposit certificates bearing Nos.30566615361, 30556383349, 30576034600 & 31301947959 and the amount lying in Savings Account No. 11808882018 and O.D. personal (Salary Account) No. 11808823674, within a period of three months from the date of receipt of the copy of this order. However, it is made clear that the petitioner will not be entitled to get the balance amount of 50% lying during the period of his suspension because the impugned order of dismissal clearly stipulates that the suspension period will be treated as-"not on duty".

[20] In the result, the instant writ petition stands allowed as indicated above and accordingly, disposed of.